Ex tibris
C. K. OGDEN

ON THE LAW CONCERNING

NAMES AND CHANGES
OF NAME

BY

'ARTHUR CHARLES FOX-DAVIES,

OF LINCOLN'S INN, BARRISTER-AT-LAW,

AND

P. W. P. CARLYON-BRITTON, F.S.A.

LONDON

ELLIOT STOCK, 62 PATERNOSTER ROW, E.C.
1906

PREFACE.

A SERIES of articles under the same title which
appears upon the present volume appeared some
years ago in the Genealogical Magazine over the
signatures A. C. F. D. and A. M. R., the latter initials
being those of Mr. A. M. Rickards. The revision
and extension of those articles into the book form in
which they now appear has been the joint work of
Mr. Carlyon-Britton and myself, so that the actual
authorship is rather a composite matter, although
Mr. Rickards has, of course, no responsibility for the
extended, revised and later form.

A. C. FOX-DAVIES.

CONTENTS.

PAGE

NAMES, ....... i

FRONT NAMES, ...... 2

SURNAMES, . . . . . .13

CHANGES OF NAME, ..... 42

PROCEDURE, ...... 76

DEEDS POLL, ...... 85

ROYAL LICENCES, ..... 90

ACTS OF PARLIAMENT, ..... 105

THE NAMES OF BASTARDS, . . . .107

INDEX, . . . . . . .113

A TREATISE
ON THE LAW CONCERNING

NAMES AND CHANGES OF NAME.

NAMES.

FROM the legal point of view, the consideration of
the subject of names presents very abnormal
difficulties from the initial obstacle that it is almost
impossible to properly define a name. With one or
two rare exceptions, which will be afterwards referred
to, nothing in the nature of a right which can be
enforced against either a specific person or the com-
munity at large is created either by the circumstances
of origin, by prescription or by custom. Usage and
the custom derivable from usage have created pre-
cedents and procedure, but nothing more. These
can be recited and applied, but there are no circum-
stances in which they can be enforced, and, conse-
quently, they are not cognisable by the law. There
is no leading case, nor in fact a case of any kind,
which has necessitated a legal interpretation of the
conundrum, " What is a name ? " and with the excep-
tion, perhaps, of the Du Boulay case, 6 Moore, P.C.

430 (N.S.) 31 ; 38 L.J., P.C. 35 ; L-R- 2 P.C. 430; 17

i

2 TREATISE ON THE LAW CONCERNING NAMES.

W.R. 594), the result of which was purely negative, in
every case in which a name has been a more or less
material issue, the real point at issue has been some-
thing else (usually the interpretation of a trust clause),
and the matter of the name has been merely correlative.
The subject is complicated by the fact that,
haphazardly from time immemorial, but consistently
since, at any rate, the reign of Charles II., the Crown
has asserted the matter of names and changes of
name to be within its prerogative, but it has, whilst
definitely asserting this attitude through such of its
ministers and offices as are concerned with the subject,
as persistently avoided putting its prerogative to the
test of legal action. It has, moreover, and equally
consistently, connived at wholesale disregard in some
other of its departments of its asserted prerogative,
and in this state of uncertainty undoubtedly lies the
responsibility for the unsatisfactory position which
exists at the moment. The few statutory enactments
which can be referred to are not of the smallest use
in defining the status of a name, and in the attempt
to arrive at some approximation as to what that
status is, it will be necessary to glance briefly at the
origin of names.

FRONT NAMES.

One of the earliest evolutions in the progress of
human nature from savagery to civilisation is
marked when one reaches that point of the existence
of individuality when the use of a name is an obvious
necessity.

FRONT NAMES. 3

This necessity of course goes back to the remotest
period of which human law as opposed to natural law
has knowledge ; but for the present purpose there is
not the smallest necessity to touch upon the matter
at that stage. Forenames, or what we now term
Christian names (the earlier form of the term is
"christened names"), of course, antedate surnames,
personal or hereditary, by many centuries, and the
Christian Church in its all-embracing practices of ap-
propriation of authority, and in its particular practice of
grafting religious ceremony of its own upon occasions
of ceremonial which it found in existence, quickly
absorbed within its control an authority over Christian
names.

There is no specific statutory basis for such autho-
rity, which must be implied, nor is there the smallest
expressed legislative declaration thereof, but un-
doubtedly the common law of this country does
recognise the existence of ecclesiastical law, and save
in so far as it has been specifically abrogated, or is in
admitted conflict with the common law, and therefore
invalid, ecclesiastical law unquestionably retains a
certain force and authority which cannot be ignored.
More particularly is this the case where ecclesiastical
law fills an obvious hiatus in the common law, and does
not conflict therewith, which was undoubtedly the
case in this country when the law of the Church had
universal application, and nonconformity neither
existed in fact nor was recognised by the common
law. At a period when benefit of clergy was a part
of the law of the realm, defeating in a most notable
particular the operation of the ordinary common law,

4 TREATISE ON THE LAW CONCERNING NAMES.

it is quite idle to question the effective operation of
ecclesiastical procedure, although even as ecclesiastical
law no enactment or specific authority can be re-
ferred to on the subject of names. The common law
will, of course, recognise and enforce custom on proof
made of that custom, so that there can be no doubt
of the effect in law of a custom so widespread and
universal as the giving of names in baptism. The
common law unquestionably recognises this, for
though it does not forbid it, it neither provides for
nor recognises any other method of acquiring a
Christian name, and it is a point which should not be
overlooked that it recognises the inviolable character
of that religious ceremony, and its unalterable effect
in conferring a Christian name, because it provides
neither through the exercise of the King's prerogative
nor by any other operation of law for, nor does it
even contemplate the possibility of, a change of
Christian name.

There is no way known to the law by which a man
or woman can change a name which has been given
in baptism.

Of course an Act of Parliament can do anything i-n
this country, and, in consequence, any change in the
Christian name acquired by baptism must be made
by Act of Parliament. Where baptism does not
take place, the Christian name, though selected and
given by the parents, is on a different footing. What-
ever force it may acquire, and one would hesitate to
say definitely that it has any force at all, is derived
only from repute.

\Vith the repeal of the compulsory authority of the

FRONT NAMES. 5

law ecclesiastic, by the statutory recognition of Non-
conformity, comes the first great breach in the con-
tinuity of custom. The custom and its legal validity,
however, remain for those who incline to conform to
it, but for those who decline such conformity, what
law or custom can be said to take or have taken its
place? Frankly, there is none. Nonconformists
point to the provisions and procedure of the Act for
the Registration of Births, but such a supposed
custom is obviously a fallacy. The Act is one for
the registration of the fact of birth, and of that only.
The insertion of the name of a child is a mere matter
of convenience, and a desirability for purposes of identi-
fication. Whilst the Act distinctly provides that the
fact of a birth must be registered, it is perfectly
possible for the child to be registered without a
name ; the name may be subsequently added to the
register, but the provisions relating to the name
are purely permissive, and for all that that Act,
or any other Act or any law or custom, provides
to the contrary, any person may live or die carefully
refraining from acquiring any Christian name at all.
There are scores of cases where a child dies without
a name. So that, obviously, where a law is silent
as to the name, it cannot be invoked as a statutory
authority to stereotype or validly confer a name-
The sum total of the effect of the registration of a
name concurrently with the registration of birth, is
merely an authoritative and notable record of the
commencement of repute, which, however, must con-
tinue uninterruptedly to crystallise into such repute
as the law will take cognizance of. Unquestionably,

6 TREA TISE ON THE LA W CONCERNING NAMES.

if nothing subversive of or contrary to that repute
occurs, then the registered name has acquired a
certain force, and stands until it is upset by an overt
act or by a repute to the contrary. The position may
be put thus — that a baptismal name is a name con-
ferred in a method that the common law has sanctioned
for centuries, and which was formerly the only way in
which a name could be conferred ; that this method
was one which the common law not only recognised,
but made compulsory by statute, under the statutory
authority placed upon the services contained in the
Prayer Book ; that nothing has occurred to alter the
binding statutory legality of the prescribed service of
baptism upon all conforming members of the Church
of England, and that the fact that conformity has
since been made permissive and not compulsory does
not remove any part of the legal status of a name
acquired in baptism by those who elect to conform.
A baptismal name, therefore, is of higher authority
than a name based upon repute only ; for while repute
may lapse or may be destroyed and superseded by
contrary repute, baptism cannot. But repute can be
superseded by baptism.

If, therefore, a child has been registered in one
Christian name and baptised in another, the baptismal
name (which short of an Act of Parliament is un-
changeable) is its true and unalterable name, and
priority of baptism or of registration has no weight
one way or the other. An entire change of name at
a time of adult baptism is a lawful and irrevocable
conferring of a name, absolutely operative as a bar to
prior repute.

FRONT NAMES. ^

The Church in relation to baptism permits this rite
to be performed by any person, and there is no set
form of words essential beyond the mere declaration
of some person, who, sprinkling the child with water,
states that he or she baptises the child in the name of
the Father, Son and Holy Ghost, so that practically
within these very wide limits any professed cere-
monial of baptism, with or without witnesses, in
church, chapel or private house, is a valid baptism
even by the law ecclesiastic ; and consequently, a
lawful and effective conferring of a name. And
though the Church asks after informal baptism for
the subsequent ceremony of the public reception of
the child into the Church, there is nothing in the
Church service to question the absolute and abiding
validity of the informal ceremony.

Where nothing which the Church will recognise as
baptism takes place, there is no conferring of a name
which the law has recognised, for the common law
cannot make into baptism a proceeding which the
Church declines to recognise as such, and though the
common law has recognised and made of authority
that ceremony of the Church, it has provided nothing
as a substitute where there has been no baptism.

There does not appear to be any civil penalty en-
forceable upon a clergyman for not making a proper
entry in his Church registers after the ceremony has
taken place, therefore there is no guarantee that the
name given at the ceremony will be properly regis-
tered. Under these circumstances, it is desirable
that the names should be written and handed to the
clergyman before the ceremony, so that the child may

8 TREATISE ON THE LAW CONCERNING NAMES.

be called by the right name, and that there may be
no discrepancies in spelling when the written evidence
of the fact of baptism and of the name given in that
baptism is being created in the ecclesiastical register.

At the same time a mandamus will lie under the
Acts relating to the making of parish registers to
compel any clergyman to make an entry in his
register of any baptism which takes place.

There exists no machinery for making alterations
in a Church register. There are many cases in which
this has been done, however, though whether done
properly or not is open to discussion. Entries
registering baptisms, &c. made at a date long after
the ceremonies have been performed are by no means
uncommon in Church registers, and they are found
interlined or out of their order of date. Such entries
are always open to grave suspicion, consequently it is
desirable that where the necessity for them arises, full
explanation thereof should be inserted and signed by
the clergyman.

The fact that, short of an Act of Parliament, the
law knows no way in which a Christian name can be
changed, however, does not seem to deter the perennial
attempt on the part of those who object to the names
bestowed upon them in baptism to make the change
they desire.

Therefore two facts should be borne in mind.
First, as will be subsequently explained at greater
length in relation to changes of surnames, that (pro-
vided always that no question of deception or fraud
enters into the matter) an act done in any name
holds for good or bad equally with an act done in a

FRONT NAMES. 9

genuine name. (There is a possible exception to this
generalization in the Money Lenders Act.) The
second point to be remembered is that a change in
any name leads to doubt of identity. So that if any
change in a Christian or " front " name is made,
lasting evidence of the facts of the change should be
created at the time of the change. This can be done
by an advertisement in a newspaper, or by a deed
poll enrolled in the High Court. A copy of a
newspaper gets lost, and back numbers of a paper
are not always easy to procure, even when the actual
date of the appearance of the advertisement is known.
The Times is unquestionably the best paper to make
use of, because an index to this is compiled and pub-
lished. A deed poll, however, is better. Such a docu-
ment does not run the same risk of destruction as a
newspaper, and, being formally enrolled, the evidence
is perpetuated beyond loss for all time to come.

But such a change is not a legal change, and neither
advertisement nor deed poll can make it legal. The
change is no more than an unauthorised alias, and
the advertisement and the deed poll do no more than
establish unquestionably the fact of the identity of
the person described at the different periods under
his genuine name or under his alias.

But there is one other custom which probably has
equal binding effect with baptism, and that is the
Jewish ceremony of circumcision, and the concurrent
naming of the child.

The Jewish ceremony is on a different footing
altogether from Nonconformist procedure. There is
not the very smallest statutory authority for Noncon-

io TREATISE ON THE LAW CONCERNING NAMES.

formity. In the eye of the law Nonconformity has
no positive existence, at any rate as far as its cere-
monial is concerned. It is purely negative, a statutory
relief from the compulsion of ecclesiasticism and
the law ecclesiastic. Nonconformity cannot of itself
create a ceremonial of which the law can be cogniz-
able. The law has created no ceremonial for Non-
conformity, except the statutory recognition which
exists of its ceremonials of marriage. The important
point is that Nonconformity is subsequent alike to
the Catholic Church and to the Established Church.
The Jewish religion antedates them both.

The Jewish ceremonial is an integral part of
Judaism ; it is a custom so fixed and determinate
that the law must recognise it as a custom binding in
and upon Jewry, and upon proof made, must declare
and pronounce for that custom. For the Jewish
religion, and for the specific practice of Judaism in
this country, there is specific and precise statutory
authority, quite apart from the general statutory
reliefs upon which Nonconformity at large is based.
That specific permission and authority must be held
to sanction the special customs and ceremonial of
Jewry, and, in particular, the ceremony of circumcision
and naming. There can be little doubt, therefore,
that a Jewish forename is upon the equivalent basis
to a baptismal name. No doubt similar remarks hold
good concerning other ancient non-Christian religions
within the British Empire, which either by express
enactment, or by our recognised and undoubted con-
stitutional custom, are permitted to retain and prac-
tise their ceremonial as theretofore accustomed.

FRONT NAMES. u

As a matter of practice the Roman Catholic religion
requires at least one of the baptismal names to be
that of some saint included in the calendar. The
Established Church of England neither in practice
nor in law asserts any such position. Some clergy-
men seek to veto the name chosen by the parents ;
but the ordinary citizen has this remedy against the
clergymen of the Established Church, which does not
lie against Nonconformist ministers. A clergyman of
the Church of England is, in his ceremonial duties,
subject to the law of the land. He is bound to per-
form the ceremony of baptism when so required by a
parishioner, and the law will compel him to do so by
mandamus ; and as both the law ecclesiastic and uni-
versal custom assign the choice of a child's name to
its parents or godparents, a clergyman is bound to
baptise a child in whatever name the godparents de-
clare to him at the proper time in the baptismal cere-
mony. But it should be borne in mind that baptism
is a Christian ceremony, and that no Christian minister
can be compelled to perform the Christian ceremony
of baptism and therein confer a name in open and
direct antagonism with Christianity. A case some
years ago obtained much newspaper notoriety (it did
not, we believe, reach any court of law), in which a
clergyman declined, and rightly declined, to baptise
a child by the name of Beelzebub.

The privilege of signing the surname or peerage
designation only (or rather, of omitting the Christian
name in the signature) is in this country a privilege
rigidly confined to peers, who merely sign the de-
signation of their peerage. Peeresses in their own

12 TREATISE ON THE LAW CONCERNING NAMES.

right sign in the same manner, without the use of a
Christian name. Peeresses by marriage sign their
Christian names (or initials), followed by their peerage
designation. Those who are peeresses by marriage
and also peeresses in their own right have obviously
the choice of either or both these two methods. The
instances are of course rare, but in the cases of the late
Duchess of Sutherland, the Countess of Yarborough,
and the Countess of Powis, the signature has been
the initial (or the Christian name), and the higher
peerage (by marriage) designation followed by the
lower peerage (by inheritance) designation alone.

There is no statutory or common law basis in
England for this privileged custom of signing by the
title only and omitting the Christian name, and the
custom dates little, if anything, earlier than the
Stuart period, nor is it easy to account for its origin.

There is, however, express statutory authority in
Scotland, where it is illegal for any one being neither
peer nor bishop to sign without prefixing the
christened name or its initial letter ; but express
permission is given by the Act (1672) that any one
may adject to his name the designation of his lands.

Cases have occurred in which, in compliance with
the terms of a will or settlement, a peer has received
a Royal Licence to assume an additional surname.
The fourth Duke of Portland, after 1795, when he
received a Royal Licence to assume that name, signed
" Scott Portland." A Royal Licence was issued in
1789 to Lord Eliot of St. Germans to assume the
name of Craggs in addition to Eliot, " with power to
subscribe the name of Craggs before all titles of

SURNAMES. 13

honour." No doubt these are exceptional cases, de-
pending upon express terms of settlement or bequest ;
but the declaration (1906) relieving Lady Dunsany
from the necessity of subscribing an assumed sur-
name in conjunction with a Peerage title will no
doubt form a sufficient precedent for the future grant-
ing of such relief in a similar case.

The royal family of this country (as do the
members of all other sovereign houses) sign by their
Christian names only, and do not use the peerage
designations they may possess. The reason is simple.
In the early days, when both surnames and customs
were in the making, kings and their families neither
needed nor used surnames. Contrary to popular
notions, Plantagenet was not a surname, nor even for
junior members of the royal house is any record to
be found of contemporary use of that designation,
with one, and that a late, exception. Tudor may
have been, Stuart certainly was a surname. Guelph
was not, nor has his present Majesty any surname at
all. To this extent is the absence of a surname
carried, that H.R.H. the Princess Royal does not
sign as a peeress " Louise Fife," but " Louise, Duchess
of Fife."

SURNAMES.

Christian names, as we have seen, being given in
baptism, the increasing population and the develop-
ment of transit, and other matters of social progress,
demonstrated the insufficiency of the Christian name
alone. One would have expected the development

14 TREATISE ON THE LAW CONCERNING NAMES.

to have been upon the lines of a second baptismal
name. As a matter of fact, the idea of a second
baptismal name does not become at all a usual prac-
tice until the latter half of the eighteenth century,
though isolated cases are met with earlier. The
development, like so many other matters in our con-
stitution, was an accident, though an inevitable one,
and entirely unpremeditated.

Here it may be interesting to note that the definition
of the word "surname" is from, according to some
authorities, the French sur (Latin super], meaning
over and above. That is, the " surname " is over and
above the name. Probably the phonetic corruption
of the word surname to " sirname " was the origin
of the word " sirename," which is now identical in
meaning with " surname " ; but " sirename " is not
the derivation of the word " surname," plausible as
such a supposition may appear. Du Cange, on the
other hand, suggests that surnames were first written,
" not in a direct line after the Christian name, but
above it," and hence they were called in Latin
supranomina, in Italian sopranomi, and in French
surnoms. Originally, any name other than the Chris-
tian name was a " surname." It should be borne in
mind that anciently a man had but one Christian
name.

With regard to the origin of surnames, it may here
be pointed out that " surnames " — of the nature of
nicknames — can be traced back to mythological
times ; but they were transient, and as often as not
conferred after death. In England nothing of the
nature of a hereditary surname existed before the

SURNAMES. 15

Conquest. True, a man was occasionally described
as the son of his father ; e.g., the names " Godwinson "
and " Leofricson " are well known, though contem-
porary proof of the usage of such names is not easy
to find. But these were not hereditary, and being
literally used, must have been altered of necessity
with each generation. With the Norman Conquest
many things, many laws and many customs, changed
completely. It is to the Norman invasion that we
owe surnames.

In considering the origin of surnames it must be
remembered that to all intents and purposes in those
days there were but two classes — patricians and ple-
beians. The latter were chiefly of a status little, if
anything, better than slavery ; in fact the serfs were
slaves, though there was also a small, but a decidedly
small class who were the merchants and traders — the
freemen and burgesses of the towns. The patricians
were the law-makers ; they made the laws to suit
their own ways and ideas, to safeguard their own
interests ; and though it is now the case that the
provisions of Magna Charta are the inherent birth-
right of every Englishman, it should be borne in mind
that there was a large class then in existence who
would have found it hard indeed to claim the rights
extorted by the barons from the king, theoretically
for the benefit of all men, really for the benefit of
themselves alone. But even as far as the barons
were concerned, Magna Charta was merely a de-
claration of rights supposedly then existing, and, as
a document, a treaty between the barons and the
king that these rights of theirs should be observed.

1 6 TREATISE ON THE LAW CONCERNING NAMES.

The barons were looking after their own interests,
and the patrician of those days would see and admit
but little social difference between his churls and the
traders of a town. There were but few traders in
those days that rose much beyond the level of the
pedlar of to-day.

The point it is desirable to emphasise is the wide
distinction between the landholders — who were the
upper class — and the remainder. The upper class
were few in number ; there was land enough for all.
In those days it needed no great quantity of land to
sustain a gentleman. Therefore, to all intents and
purposes, every gentleman was a landholder. The
overlords held direct from the Crown, rendering in
return the military service which, according to their
holdings, could be demanded from them. They sub-
let their lands, and the under-tenants were liable to
them for military and other services. The whole
being and existence of the Norman upper class was
inseparably bound up in and interwoven with the
land and the feudal tenure of it. The Saxon land-
holders who would not accept the new order of things
simply " went under." In those days human life was
cheap, both in theory and in fact.
1 When a man's Christian name was not a sufficiently
distinctive description, it followed, of course, that he
was described as "of" his lands — i.e., " de" such and
such a place. Now that practice, which is unquestion-
ably Norman, dates back in this country as an assured
and settled custom at least as far as the Conquest.

But the Normans, who brought with them the
practice of describing themselves as "of" or " de "

SURNAMES. 17

their lands, also unquestionably (as is still so often
the case with colonists) in many cases transplanted
the Norman place-names to their new estates, and
so perpetuated for themselves in England the same
designation which they had previously enjoyed in
Normandy. Others retained their Norman estates
and designations, but these designations were not sur-
names, as is amply evidenced by the fact (provable in
a few cases but suspected in many) that on different
occasions the same man figures in different localities
under different designations. But it should be re-
membered that at first such additions were not names
— they were merely descriptions — and they were not
hereditary. If a man changed his lands he changed
his description (which now we should call his name)
with his lands, as a matter of course. If a man
divided his estate amongst his sons, each son had a
different description, which he took from the par-
ticular lands he held. A man might give his lands
away, he might sell them, he might settle them ; he
could not dispose of them by will until at a much
later date. In those days there was no " estate" duty
to avoid. The Plantagenets had not yet begotten
that scion of their race who initiated that impost.
Therefore, unless circumstances compelled a man to
part with his property, he usually held tight to his
lands until he died, and at his death his heir suc-
ceeded. As a rule, therefore, a man was succeeded
by his son, and he, in his turn, by his son. As son,
grandson and great-grandson, each in his turn suc-
ceeded, he, as a matter of course, also succeeded,
along with the lands, to the same description, as being

2

1 8 TREATISE ON THE LAW CONCERNING NAMES.

"of" or "de" those same particular lands. This
particular description recurring unaltered generation
after generation, the form became stereotyped, col-
loquially the " de " would be dropped, and the same
description being universally applied to the same
family, it came to be regarded as a constituent part
of a man's name. Younger sons who were not pro-
vided with lands of their own did one of two things :
they married an heiress, and then became described as
of her lands (they did not take her surname, for
surname she had none), or else they stayed in the old
homestead in readiness to render the military service
for which the landholder was liable to the king. As
they remained at the old home (possibly with some
interest — actual and reversionary — or maybe no more
than an intangible moral right to sustenance, as
children of their father, from their father's lands) it
was only natural that they also were described and
referred to as "of" the place, even when they person-
ally had no actual possession therein.1 And it is
difficult — in fact, practically impossible — to say when
such a description came to be a name, and ceased to
be a description. The point is of some importance,
because many of these early changes — apparently
changes of name, but in reality nothing more than
mere changes of description — are glibly quoted as
precedents to show that no authorisation was or is

1 It is curious to note one radical difference in the present day
between Scottish and English practices. In Scotland, in any legal
deed, scrupulous care is always taken that a man is not described as
"of" a place unless it is his property. In an English deed "of"
means no more than resident there. Many a man has been described
as "of London."

SURNAMES. 19

needed to make a change. As a matter of fact, they
are not changes of name at all, and though perfectly
authentic pedigrees can be produced showing the same
addition (in place of a surname) to the Christian
name generation after generation back to the Con-
quest, such additions were most certainly not fixed
or necessarily hereditary, nor were they surnames
until a much later date. But it was the regular re-
currence of the same territorial description from
father to son that stereotyped that description into a
" name," and which, by a very natural evolution,
caused surnames to be considered to be and to become
hereditary.

Concurrently with the evolution of surnames from
territorial designations, the same process was going
on in relation to offices. Some were actually and by
law hereditary, and other posts, whilst not having a
compulsorily hereditary attribute, were nevertheless
held by successive generations of the same family.
It is worth the passing remark in such cases whether
successive holders of an office, consequently enjoying
therefrom the same description, have not sometimes
been too readily assumed to be a succession of father
and son, and accepted as names in a pedigree.

The same sequence must naturally have occurred
in regard to mere trade or occupation, the succession
of a son to his father's trade, a circumstance which
even now occurs constantly.

Again, a large number of surnames are of patrony-
mic origin, the prefixes of " Ap " or " Fitz " or " Mac "
or " O," and the affix of " Son " being a regular
customary use. Names of this character at their

20 TREATISE ON THE LAW CONCERNING NAMES.

inception were presumably names only of a genera-
tion. But sons are baptised in their fathers' names,
and it would need but two or three generations in
which the same patronymic was consequently con-
tinued to stereotype it into a surname.

The hereditary repetition of a personal peculiarity
would also stereotype a nickname, which unquestion-
ably some of the Norman designations were.

All these circumstances acting concurrently in
England produced our hereditary surnames, which in
the upper classes date from about the twelfth century.

In Wales, Scotland and Ireland, where the Norman
influence scarcely penetrated, the causes and effects
were different.

Of course there are a few (a very few) exceptions,
but to all intents and purposes it may be taken to be
an established fact that the ancient families in
England are those which have territorial surnames.
What, then, becomes of the Roll of Battle Abbey ?
To begin with, the Roll of Battle Abbey no longer
exists ; no one knows whether it ever had any actual
existence, and nobody really knows what names were
originally upon it. So-called copies of it exist, but
they all differ widely, and it is known to have been
extensively tampered with. The names upon it are
chiefly territorial descriptions, Christian names, pat-
ronymic descriptions and nicknames. None of these
had then any fixed hereditary character. But as the
earliest copy known is centuries later in its date, the
appearance of a particular name is no evidence that
that name existed at the Conquest. A few of the
patronymics have remained, due no doubt to the

SURNAMES. 21

inherent inducements to christen a child after his
father or grandfather. A few of the nicknames sur-
vived long enough to become crystallised into names,
for the natural tendency of a nickname is to " stick."
Personal characteristics, admirable or the contrary,
were then the source of all nicknames, and personal
characteristics were hereditary long before surnames
became so. The nicknames were perpetuated by
virtue of their being perennially appropriate, and by
their being reconferred in the succeeding generations
in which the personal characteristics were reproduced.
But even in cases where the same nickname is re-
peated in later dates, there is seldom documentary
evidence to show blood relationship between any two
holders. In all times people have been only too ready
to assume that a similarity of name indicated descent
or relationship.

But the point is simply this : It is no good boasting
of a Norman pedigree unless you have at least a
territorial or a distinctly Norman name. Patronymic
names — e.g., Robinson, Jackson and Johnson — and
names deriving from occupations — e.g., Smith, Cook,
Fletcher — did not originate till much later, and never
originated at all in England amongst the upper
classes. The upper classes in nearly every case took
their names from their territorial descriptions. Those
outside the landholding classes had no need for sur-
names till a later date. They were never mentioned
in a legal deed, and their Christian names, and
perhaps a nickname, answered all distinctive purposes
amongst the few friends and neighbours who com-
prised the small circle of their acquaintance. They

22 TREATISE ON THE LAW CONCERNING NAMES.

lived and died and were forgotten. A moment's
thought will show that this was so. Even at the
present day there are hundreds of the lower classes
who are only known by a Christian name and a nick-
name, and who find that the only occasions on which
they have the slightest use or opportunity of using a
surname are their registration of birth, occasionally
for the purpose of a marriage, at their appearances in
the police-courts, and for the inquests at their deaths.
There is scarcely a week goes past that the press does
not provide some instance or other of the difficulty
such people and their friends find in coming to a
decision as to what their surnames may really be.

Whether the Education Department will be able
to alter matters in the near future still remains to be
seen. But if in this busy, over-populated twentieth
century there are still people who, without incon-
venience, can dispense with the attribute of a
hereditary surname — and it is evident that there are
— it is not to be wondered at that in early times the
possession of a hereditary name was not amongst the
lower classes a " long-felt want."

At any rate, those who were not patricians and not
landholders managed to rub along without stationary
or properly hereditary surnames until the twelfth or
the beginning of the thirteenth century. From about
that period, or perhaps a little later, surnames became
hereditary and fairly universal in all classes in
England.

But the upper classes had already obtained their
names from their lands. The rest had no lands to
take names from. Therefore we find they obtained

SURNAMES. 23

their names from other sources. It should not be
forgotten that no man chose his own name. It was
unconsciously conferred by his neighbours, who
applied to him the most readily recognised description
that would particularise him as and when the necessity
arose that he should be particularised. There are
many names which no sane man is ever likely to have
deliberately selected for himself. His name was a
matter of common repute — the description by which
his neighbours happened to refer to him — and was
neither assumed nor conferred by any overt or specific
act. There was to all intents and purposes no
general legislation concerning names, simply because
the patricians needed none for themselves, the de-
scription of their lands answering every purpose.
The doings of plebeians, which did not affect the
comfort or prosperity of their lords, were not worth
consideration, and certainly did not merit legislation.
The laws of those days were not dictated by New-
castle or other programmes. Each particular enact-
ment which happened to be made law was due to a
palpable necessity of the moment.

Surnames other than territorial descriptions were,
we must remember, the simple result of necessity,
when population, theretofore isolated and small,
became so increased as to necessitate further particu-
larity than the merely personal one could supply.
Bardsley in his " English Surnames " places the date
of the general assumption of surnames too early, but
his remarks are worth quoting : —

" In the eleventh and twelfth centuries, however, a
change took place. By a silent and unpremeditated

24 TREATISE ON THE LAW CONCERNING NAMES.

movement over the whole of the more populated and
civilised European societies, nomenclature began to
assume a solid, lasting basis. It was the result, in
fact, of an insensibly growing necessity. Population
was on the increase, commerce was spreading, and
with all this arose difficulties of individualisation. It
was impossible, without some further distinction, to
maintain a current identity. Hence what had been
but an occasional and irregular custom became a
fixed and general practice — the distinguishing sobri-
quet, not of premeditation, but by a silent undei;-
standing, came at length to be fixed and hereditary.
This sobriquet had come to be of various kinds. It
might be the designation of property owned ... or
it might be some local peculiarity that marked the
abode. It might be the designation of the craft the
owner followed. It might be the title of the rank or
office he held. It might be a patronymic — a name
acquired from the personal or Christian name of his
father or mother. It might be some characteristic,
mental or physical, complimentary or the reverse.
Any of these it might be, it mattered not which ; but
when once it became attached to the possessor and
gave him a fixed identity, it clung to him for his life,
and eventually passed on to his offspring."

Bardsley, in his well-known book on the origin of
English surnames, divides them into five classes : —
(i.) Baptismal or personal names, better described,
perhaps, as " patronymic " names ; (2.) Local sur-
names ; (3.) Official surnames ; (4.) Occupative sur-
names ; (5.) Sobriquet surnames or nicknames. Of

SURNAMES. 25

the first class, Williams, Thompson, Wilcox and
FitzGibbon are good examples. In the second,
distinction ought to be drawn between territorial
and local names. Of the former kind are the place-
names anciently written with " de " before them,
signifying the former lordships of the lands. Of the
latter are the names which merely arose from
residence, e.g., Bywater, Lane, Field, Styles, Ashurst,
Attwood. Amongst surnames of office are Hayward,
Buckmaster, Hunter, Falconer. In the fifth class the
following must be placed : — Thacher, Mason, Slater,
Vyner. The last class is very numerous, e.g., Little,
Black, Fairfax, Fox, Wagstaffe, Wise, Benbow, Hard-
man. Mr. Bardsley once went to the trouble of
analysing the names in the first five letters of the
alphabet in the London Directory. Here are his
figures : —

Territorial and local, . . 11,360

Baptismal, .... 8,203

Occupative, . . . 2,651

Official, .... 1,737

Nicknames, . . . 3,096

Foreign, . 1,584

Doubtful, .... 1,694

30,325

In referring to local and territorial names, particu-
larly the latter, it is well to raise the warning that the
possession of a territorial name does not necessarily
even suggest descent from the lords of those lands.
A large proportion of foundlings have been given

26 TREATISE ON THE LAW CONCERNING NAMES.

surnames from the names of the places on which they
were found. Further, former residence in a different
place often conferred the name of that place as a
surname, when in another locality it was necessary to
distinguish a stranger who had come therefrom.

We have now seen how and when surnames
originated in England. Let us next turn to Wales.
In no country in the world is the origin of each name
so universally one and the same as in the Principality.
Roughly speaking, there is but one class of surnames
in Wales — the patronymic class. There are one or
two rare exceptions (but they are so rare that they
can be quite dismissed from consideration), but saving
these, there are no territorial names at all in Wales.
For all practical purposes it can be taken to be an
established and indisputable point that every pro-
perly Welsh surname is patronymic in its origin, that
is, it is derived from the Christian name of the father.
From the circumstance of their common British
origin, it might be supposed that the Welsh people
and the inhabitants of Cornwall would exhibit some
analogous principles in the construction of their sur-
names. Such, however, is not the case. The Cornish
surnames are mostly local, derived from words of
British root, and they are often strikingly peculiar.
A large number have the prefix Tre, a town ; and
the words Pol, a pool ; Pen, a head ; Ros, a heath ;
and Lan, a church, are also of frequent occurrence,
and the Cornish rhyme,

" By Tre, Pol and Pen
You shall kno\y the Cornish men,"

has obtained for itself a world-wide acceptance. This

SURNAMES. 27

is a striking proof that in the very earliest times there
were no such things as surnames at all, much less
hereditary surnames. Hereditary surnames were not
in use in any form, even amongst the gentry and
landholders in Wales, until the time of Henry VIII.,
nor were they generally established until a much
later period ; indeed, at the present day they can
scarcely be said to be adopted amongst the lower
classes in the wilder districts, where, as the marriage
registers show, the Christian name of the father still
frequently becomes the patronymic of the son. The
way in which a Welshman was in a former day
described was by his own Christian name, followed
by the word " ap " (meaning the son of) and his
father's Christian name, as Hugh ap Howell. The
Welsh "ap" is the exact equivalent of the Norman
" Fitz," and the Scottish " Mac," and the Irish « O',"
and something akin to the Maltese " dei " of the
present day. But with regard to the Norman " Fitz "
— and perhaps the remark should more properly have
been inserted when dealing with Norman names — the
use of the prefix always carries with it a kind of
lingering suggestion of bastardy, though this is far
from being always the case. A Norman in the
ordinary event inherited his father's lands and' terri-
torial description. A bastard inherited neither lands
nor name, and therefore the " Fitz " was added to
his father's Christian name when the father would
acknowledge the relationship. We shall have occasion
later to refer to the cases and rights of illegitimate
children, but the point is illustrated by an ancient
ballad. When Henry I. wished to marry his son

28 TREATISE ON THE LAW CONCERNING NAMES.

Robert to Mabel, co-heiress of Fitz Hamon, the lady
demurred :

' ' It was to me a great shame

To have a lord withouten his twa name."

Robert of Gloucester.

" Whereupon," says Camden, " the king, his father,
gave him the name of Fitz-Roy." So that the
aristocratic " Fitz " is somewhat discounted in value.
Still, in these days when a pedigree of any sort
beyond one's great-grandfather is something to talk
about, a bastardy in Norman days is a somewhat
remote contingency.

A Welsh gentleman was not content with merely
announcing the name of his father. Everybody
could do that much. So he added his grandfather
and his great-grandfather, and even a hundred years
ago it was not unusual to hear Welsh names such as
" Evan-ap-Griffith-ap-David-ap-Jenkin," and so on up
to the seventh and eighth generation. The church
at Llangollen remains solemnly (we give this on the
authority of an article in the Cornhill Magazine for
July 1862, for it needs somebody to take the responsi-
bility for the assertion from one's own shoulders)
dedicated to Saint Collen-ap-Gwynnawg-ap-Clyn-
dawg-ap-Cowrda-ap-Caradoc - Freichfas-ap-Llynn-
Merion-ap-Ernion-Yrth-ap-Cunedda-Wledig. Bearing
this practice in mind, one pauses aghast at the fright-
ful efforts of memory which Welsh nomenclature, both
local and personal, must have necessitated.

Evidently the names the Welsh had occasion to
use had the advantage of keeping their memories
in good practice. To burlesque this extraordinary

SURNAMES. 29

fashion of nomenclature, a witty rhymster of the
seventeenth century describes Welsh cheese as —

" Adam's own cousin-german by its birth,
Ap-Curds-ap-Milk-ap-Cow-ap-Grass-ap-Earth."

The string of Christian names that formerly
answered all distinctive purposes with the Welsh
reminds one of the story (though there is no real con-
nection between the two) of the purveyor of groceries,
who in his year of office as mayor was elevated to the
bench of the Great Unpaid. The sergeant of police, in
mentioning a prisoner who needed the mayor's atten-
tion, referred to him as " Thomas Smith, alias Jones,
alias the Snatcher." " Ah," said his worship, " suppose
we take the ladies first Bring up Alice Jones."

In the plays of the Elizabethan period there is
frequent allusion to this ludicrous Welsh system of
names. But it distinctly had its advantages, for it
preserved identity and descent and relationship in a
manner utterly unknown in England. Thirty to
thirty-three or thirty-four generations are the outside
limit possible of any English or Norman pedigree save
the royal ones. It is otherwise in Wales, and there
is one well-known instance — Lloyd of Stockton, Co.
Salop — in which the pedigree in the male line,
without a single break, can be shown for sixty-six
generations. Though it goes back almost to the
times of legend, there seems to be no reason what-
ever to doubt it as a Welsh pedigree, for the early
part is that of ruling princes in Wales, in whose
retinue were bards and minstrels, who kept the
descent alive in song and story as a part of their

30 TREATISE ON THE LAW CONCERNING NAMES.

regular duties. But if any book of Welsh pedigrees
be examined, it will be at once apparent that the
whole of the landed and upper classes had these
patronymic names. In the upper classes in Wales
surnames were adopted universally at about the same
period — the reign of Henry VIII. One writer says,
" He strongly recommended the heads of Welsh
families to conform to the ' English usage,' and, in
consequence, many houses made their old names
stationary." Other writers have assigned the change
to the introduction and necessities due to the estab-
lishment of the system of parish registers ; in fact,
this is held by many to be largely the true cause
which rendered surnames stationary and hereditary
throughout England as well, where they had hitherto
been somewhat loosely applied.

Other writers refer to a statute of King Henry
VIII., definitely enacting that the Welsh should con-
form to the English practice. We confess, however,
that up to the present we have failed to discover the
statute, if any such exists. We are inclined to think
that the reason is rather more due to the fact that
the accession of the House of Tudor to the English
throne brought the Welsh and English gentry into
closer intimacy. The undoubted tendency of the
English of those days to sneer at the rude uncouth-
ness of the Welsh caused the latter — who considered
••hemselves to be as well or better born than the
English — to adopt the English ways and English
customs which were current in the English Court, in
order to remove the reasons of the supercilious sneers
they encountered.

SURNAMES. 31

Any social practice originating with the highest
classes quickly permeates down through the ranks of
those who copy their betters. By the reign of Henry
VIII. the originally territorial nature of English aristo-
cratic surnames had been in a way lost sight of.
Therefore the Welsh, in copying the English in the
adoption of surnames, or else in the process of evolu-
tion from their own practices, simply made permanent
and stationary for their surnames whatever Christian
names their fathers had, which Christian names, with
the addition of " Ap," had already been added to
their own. Ap-hugh became Pugh, Ap-howell became
Powell, Ap-Rhys became Price. The other alterna-
tive adopted would seem to show an English model.
Evan's son became Evans, John's son became Jones,
William's son became Williams, and in one or other
of these two forms of procedure all Welsh surnames
originated.

Before leaving the subject of Welsh names, one
cannot help remarking the large number of the
natives of Wales who deliberately duplicate their
surnames in the Christian names chosen for their
sons. There must be a legion who at the present
day are labelled Hugh Hughes, John Jones, Owen
Owen, William Williams, or Hugh Pugh.

One might, perhaps, attribute it to the unconscious
poetic or musical instinct which exists in most in-
habitants of hill countries, and to whom the allitera-
tion might be an unwritten attraction. That, however,
is merely a suggestion, and not a statement of provable
or admitted fact.

If territorial names are absent in Wales, they are

32 TREA TISE ON THE LA W CONCERNING NAMES.

vastly to the fore in Scotland. In spite of all one
hears of " land-hunger " in Ireland, there is no quarter
of the globe where the land and the lordship thereof
claim and obtain so great a respect or exercise such a
fascination as in Scotland. Even in this hard-headed
commercial age, the patriarchal veneration for the
" laird " of the parish is still a factor to be counted.
At the present day in England, scarcely an individual
— we know of no single one — is habitually spoken of
by the bare description of his lands, without any
prefix of his name. In Scotland the smallest free-
holder is still as often referred to by the designation
of his estates as by his Christian or his surname. In
England we have Langton of Langton, Craster of
Craster, Corbet of Moreton Corbet, Acton of Acton,
Aldersey of Aldersey, Clifton of Clifton, Eyton of
Eyton, Estcourt of Estcourt, Lowther of Lowther,
Gatacre of Gatacre, and many others ; but it would
be considered an impertinence to drop the names or
titular prefix. In Scotland it is otherwise ; and not
only do their neighbours merely use the designation
of their lands in referring to them, but so fixed and
accepted is the custom that the larger landholders,
who by long inheritance have, as it were, acquired a
hereditary right to such descriptions, themselves use
them. For instance, Mr. Ewan Macpherson of Cluny
Castle, who is always spoken of in Scotland as "Cluny
Macpherson," and that without a " Mr.," in writing a
letter in the third person refers to himself as " Cluny."
In the same way Mr. Cameron of Lochiel is always
spoken of and calls himself "Lochiel." Apropos of this,
it may be recalled that the late Sir Frank Lockwood,

SURNAMES. 33

at a reception, hearing the butler announce " Lochiel
and Lady Margaret Cameron," announced himself in
his turn to that functionary as " 24 Prince's Gardens
and Lady Lockwood." In the same way there is
another Scottish practice which is unfamiliar to
English ears. When the surname and the designa-
tion of the lands are the same, a Scotsman describes
himself as " of that Ilk " [i.e., of that same (name)], e.g.,
11 Udny of that Ilk," " MacLeod of that Ilk," " Lamond
of that Ilk," "Macintosh of that Ilk," though the
latter is more generally known as " The Macintosh."
That, again, is a custom the English never aspire to ;
some even object to it — to wit, the " cabby " to whom
The Macintosh paid a level shilling for an eighteen-
penny fare. The usual abuse followed, and then, " My
fare's eighteenpence, and I want another sixpence."
" Mon, do you no ken who you're talking to ? " " What
do I care who you are ? " " Mon, I'm The Macintosh

of Macintosh." " And do you think I care a

whether you're the blessed old umbrella as well ?
Hand out that tanner ! " It needed the ignorance of
the Southron to fail to appreciate the revelation.

With and akin to, or perhaps arising from, this
patriarchal veneration of the laird and the land, there
has grown up in Scotland the " clan " feeling. The
clan feeling is strong and intense in Scotland now,
and he is a " proud man " who is chief of a clan. He
has hundreds in his train to do him homage, for which
he makes no return and bears no responsibilities other
than those he chooses to adopt. Of course, there are
many chiefs of clans who are admitted and recognised
by everybody, but, like every other honour, it has

3

34 TREATISE ON THE LAW CONCERNING NAMES.

produced a crowd of spurious pretenders. To our
own knowledge, there are some half-dozen who claim
to be " chief of Clan Chattan." Outside the territorial
names, which are far greater numerically in propor-
tion to the population in Scotland than elsewhere in
the United Kingdom, by far the greater proportion of
Scottish names are distinctly due to this clan spirit.
The Scot is and was a born fighter. Occasionally in
his spare moments he might be induced to turn his
attention to the land, but he much preferred " looting"
his neighbours' cattle to rearing his own. Now, man
is gregarious, and the duel was of later growth, and
the inevitable result was that the " looting " was not
done single-handed. It was not theft, it was the for-
tune of war ; and the clans, which were originally gangs
of cattle-lifters, developed into " tribes," perpetually
warring with each other. Of course, a man's kinsfolk
backed him in his quarrels, and undoubtedly kinship
was the initial bond which held the clan together ;
but as the clans increased in size and importance, the
embrace of the clan was widened, and every gentle-
man brought his servants, his tenants and his fol-
lowers into the clan to fight with him, and to fight
the battles of the clan. Recruits even were sometimes
raised in England. Now, these servants and followers
all either assumed the name of the chief of the clan
or the name of the divisional head under whose par-
ticular leadership they were. That is the source from
which the majority of the Scots assumed their names.
Could any one suppose for one moment that every
one of the name of Campbell had blood descent from
the House of Lome ?

SURNAMES. 35

But if we trace the matter a step further back, and
deal with the derivation of the clan names in Scot-
land, the Registrar-General for that country in his
sixth report remarks : " Almost all the names of our
Border and Highland clans belong to the first class
[surnames derived from patronymics], and they are
peculiarly Scottish, neither belonging to England nor
to Ireland. These surnames include all those begin-
ning with Mac, as Macgregor, Mactaggart, &c., be-
sides those simple ones, as Fraser, Douglas, Cameron,
Kerr, Grant, &c. . . . Surnames taken from the
locality in which the persons originally resided form
a very numerous class . . .," and " there is scarcely a
county, parish, town, river or remarkable locality but
has its name perpetuated in the surnames." But,
taking them all in all, and as compared with other
countries, in Scotland there is a comparatively short
list of surnames, partly from the use of clan designa-
tions, and partly from the same cause as in Wales, the
secluded and rude condition of the people, which is
still especially the case along the coast and in the
fishing villages. When the fashion of distinctive sur-
names was first carried into the North, about the time
of the Reformation, the inhabitants of these secluded
places seem to have felt the lack of characteristic
designation severely, the fishing intellect being natur-
ally limited.

According to the clever writer of an article in
Blackwood? s Magazine for April 1842, on "Fisher-
Folk," there were then seldom more than two or
three surnames in a town. In "booking" their cus-
tomers, the grocers invariably inserted the nickname,

36 TREATISE ON THE LAW CONCERNING NAMES.

or " tee " name ; and in case of married men they
wrote down the wife's along with the husband's name.
Unmarried customers had the names of their parent
inserted with their own. The following anecdote is
given by the same writer : —

In one of the Buchan fishing villages a stranger
had occasion to call on a fisherman of the name of
Alexander White. Meeting a girl, he asked :

" Could you tell me fa'r Sanny Fite lives ? "

" Filk Sanny Fite ? "

" Muckle Sanny Fite."

" Filk muckle Sanny Fite ? "

" Muckle lang Sanny Fite."

" Filk muckle lang Sanny Fite ? "

" Muckle lang gleyed Sanny Fite ! " shouted the
stranger.

" Oh, it's Goup-the-lift ye're seeking ! " cried the
girl, " and fat the deevil for dinna ye speer for the
man by his richt name at ance ? "

We are ourselves ignorant of the Scottish language,
and had our doubts as to the strict propriety of the
foregoing, but we print it, relying upon the known
respectability of the magazine we quote.

There are reasons to suppose that, although 1842
is now an ancient date for these kingdoms, the peculi-
arity to which we point still exists in Scotland. A
list of all the parishioners of a parish on Donside
who voted in the election of a parish clerk in 1524 is
preserved. The minister found all their names, with the
exception of one or two existing in the parish in 1860.

The only laws, save those Acts relating to specific
cases and legalising specific changes, relating to Scot-

SURNAMES. 37

tish surnames of which we are aware are the Lyon
Office Act of 1672, to which we have already referred,
and the Acts relating to the name MacGregor. By
an Act of the Scottish Privy Council, dated April 3,
1603, the name of Gregor, or M'Gregoure, was ex-
pressly abolished, and those who had hitherto borne
it were commanded to change it for other surnames,
the pain of death being denounced against those who
should call themselves Gregor or MacGregor, the
names of their fathers. By a subsequent Act of
Council, June 24, 1613, death was denounced against
any person of the clan called MacGregor. Again, by
an Act of Parliament, 1617, chap. 26, these laws were
continued and extended to the rising generation,
inasmuch as great numbers of the children of those
against whom the Acts of the Privy Council had
been directed were stated to be then approaching to
maturity, who, if permitted to resume the name of
their parents, would render the clan as strong as it
was before. But upon the Restoration King Charles,
in the first Scottish Parliament of his reign (statute
1661, chap. 195), annulled the various Acts against
the Clan MacGregor, and restored them to the full
use of their name.

In considering the derivation of Irish surnames,
the history of the country must be carefully borne in
mind. There have been settlements of English and
settlements of Scots in the sister kingdom, which
have added a large number of names of distinctly
English and Scottish origin to those which were
originally to be found in Ireland. The present popu-
lation of Ireland, though a mixture of a number of

38 TREA TISE ON THE LA W CONCERNING NAMES.

different races, is a mixture, however, in which the
Celtic is the predominant element. The great bulk
of the most common names in the country are un-
doubtedly of Celtic origin. Many of them still retain
the prefixes " O " and " Mac," the former of which is
peculiar to Ireland, whilst the latter belongs to both
Ireland and Scotland. In many cases, however, these
prefixes have been dropped, and it is a matter of
common occurrence to find in the same record the
same Celtic names written with and without these
said prefixes. The coeval existence of two languages
in the country accounts for the practice (which still
prevails in some parts of Ireland) of using inter-
changeably English names, together with their Irish
translations or equivalents.

In some cases it is now impossible to trace whether
families are of Celtic or English descent, inasmuch as
some of the English settlers took Irish names, and
Irish families were compelled to take English surnames.

The sources from which Irish names have been
derived are the same as in England and Scotland ;
but the tribal spirit was pronounced in Ireland, as it
was in Scotland, and consequently the truly Irish
names are limited in number.

In the matter of special legislation concerning
surnames, Ireland has been more highly favoured
than any other nation.

It was provided by a statute of as long ago as
1366 that : "Every Englishman do use the English
language, and be named by an English name, leaving
off entirely the manner of naming used by the Irish."
This is a bull worthy of the Sister Isle ; but again, in

SURNAMES. 39

1465, in the fourth year of the reign of Edward IV.,
an Act was passed : " At the request of the Commons,
it is ordained and established by authority of the said
Parliament (holden at Trim in 1465) that every Irish-
man that dwells betwixt or amongst Englishmen in
the county of Dublin, Myeth, Ureill and Kildare, shall
go like to an Englishman in apparel, and shaving off
his beard above the mouth, and shall take to him an
English surname of one town, as Sutton, Chester,
Trym, Skryne, Corke, Kinsale ; or colour, as white,
blacke, browne ; or arte or science, as smith or car-
penter ; or office, as cooke, butler, and that he and
his issue shall use his name, under pain of forfeiting
of his goods yearly till the premises be done"
(Statutes at large in Ireland, 1786, vol. i. p. 29).

In the eleventh year of Queen Elizabeth an Act
was passed that five persons of the best and eldest of
every nation amongst the Irishrie should bring in all
the idle persons of their surname to be justified by
law ; and in the same year an Act was passed for
the attainder of Shane O'Neill and for the extinction
of the name of O'Neill.

The most recent attempt at legislation was not,
however, successful, and the Bill introduced by Mr.
Macaleese, M.P., to enable any Irishman to prefix
" O " and " Mac " to his surname, was not passed.

Such being the origin of surnames, we now come
to their legal aspect.

A surname is no more than a description for
purposes of identification. By long-continued and
universal custom surnames are hereditary, and that
custom the law would unquestionably recognise, fail-

40 TREATISE ON THE LAW CONCERNING NAMES.

ing in a specific case specific facts to the contrary.
Custom regards it as a fixed hereditary right that a
son should inherit his surname from his father, and
inasmuch as a name ordinarily must be inherited,
it is presumably a hereditament, and that being so,
an incorporeal one. But surely there is no other so
intangible, for, speaking broadly, the law provides no
specific method for the creation of names. Nor is
the hereditament of a name one in which any right
of property exists that can be enforced. A surname
cannot be given, sold or bequeathed, for no one
person can create a right in a surname, nor convey
any right in a surname to another. The basis of this
peculiar state of affairs is simply that a man cannot
give himself a surname. His surname is whatever
name he is universally known by, and his right to
that or any surname is in ordinary circumstances due
solely and entirely to the general custom observed by
others, who call him and know him by that surname,
and the general, in fact universal, custom is that a
man's surname is the same as that of his father ; that
a woman's name, until marriage, is that of her father,
and after marriage that of her husband. And the
general custom does not regard surnames as change-
able of mere motion, but regards them as fixed and
unalterable. Now, no man can create a custom at or
of his pleasure. The creation of a custom needs
general and universal consent and assent. The law,
where custom is not in conflict with the common law,
upon proof made of that custom, must accept that
custom as law and as binding, and must recognise
and administer that custom, and it is amazing that

SURNAMES. 41

this principle of our law should have been so
frequently overlooked in regard to the interpretation
of law in cases in which a name has been a material
issue, for the custom of inheritance of a name from
the father is so undoubted, and its acceptance so
universal, that it must be accepted as part of our
common law.

Every man has a right to require the use of his
right name, and in any legal document may require
that such name, and that name only, shall appear and
be used as his name, for ordinarily every man has
a genuine name, i.e., his baptismal name or names,
followed by the surname of his father. But no man
can insist that another shall address him or describe
him by a name other than his baptismal and paternal
names, unless he have authority for the new name,
because, failing such express authority, the basis of
the new name is but custom, and that custom must
be universal before it is binding, and in the face of
the refusal to concede the name, how can a universal
custom be pleaded ?

A false name certainly does not invalidate marriage,
though this has often been supposed. It is the two
people who go through the ceremony who are
married, and their names have nothing whatever to
do with the fact of the ceremony, and consequently
the names have no relation to the validity of the
marriage. To this proposition, however, there is one
seeming but not actual exception. If either party
to a marriage, by the use of a false name, wilfully
deceives the other party so that the identity is
obscured to the extent that the said other party

42 TREA T1SE ON THE LA W CONCERNING NAMES.

believes he or she is making a totally different
marriage, the marriage is void, but it is void as a
contract based upon fraud, and the false name is
there merely a means or evidence of fraud, and not
in itself the essential fraud.

Providing there be nothing in the nature of fraud,
there is nothing in our criminal law to prevent the
use of any name, and no injunction for a discontinu-
ance will lie (Du Boulay case).

Nor at the moment of writing is there anything to
prevent the use and assumption or wrongful retention
of any title or dignity (Cow ley case, 85 L.T. Rep.
254, P. 1900, 118; A.C. 1901, 450). It is possible,
however, that the committee sitting to inquire into
certain matters connected with the baronetage may
recommend certain procedure to that end.

But in matters of trade a man may not use even his
own genuine name in such a way as to lead the
public to be under the impression that they are
dealing with some other firm ( Valentine v. Valentine,
31 L.R., Ir. 488 ; Holloway v. Holloway, 13 Beav. 209).

CHANGES OF NAME.

One of the fashions of modern times, which at
first sight it seems difficult to account for, is that
particular weakness which causes an endless number
of people to change their surnames. But a little
thought will give the clue to the rapidly increasing
army who go through the world labelled in a form
differing from the original advertisement of their
known male ancestors.

CHANGES OF NAME. 43

It is a strange but nevertheless a true fact (and it
is a fact which might be worth investigation by those
who are at the present time engaged in the study of
the reasons and causes of the determination of sex),
that the undoubted tendency of aristocratic families
is to become extinct or to end in heiresses, and as a
consequence, for aristocratic surnames to become
extinct. The usual supposition is that most families
go up and down in a kind of switchback see-saw, and
that the disappearance of a family simply means that
it has sunk in the social scale beyond ready recogni-
tion. It cannot be denied that such cases have
occurred, but they are not the rule ; they are rare
exceptions. The usual, the almost universal, course
of events is that a family rises, intermarries with
patrician blood, and in a few generations ends in an
heiress or becomes extinct. There is no legitimate
male descendant of any King of England who sat on
the throne before the reign of George III. There
is not a single English barony by writ1 now held
by a male of the family in which it was originally
created.2 There are only about 300 noble or gentle
families now holding the same land in male suc-
cession which their male ancestors held even so
recently as the reign of King Henry VII. There
are many causes which have operated to this end,
but the chief cause is this lamentable tendency
of well-born families to terminate in the persons of
females.

1 Heritable by or through females.

Unless by any chance an instance which is overshadowed in a later
creation by patent of a higher degree has been overlooked.

44 TREATISE ON THE LAW CONCERNING NAMES.

When a family has been associated with certain
lands for several centuries, and where the name and
lands have been inseparably joined and interwoven
for so long, where the same blood (even though in or
through a female) still remains, it is but natural
enough that there should be a desire to still keep the
estate and the surname together. And in these cases,
as there has been no sale of the lands to an alien
race from time immemorial from this cause, there
have been these changes of surname. There is
scarcely an English pedigree without such a break.
It is doubtful if there are fifty authentic male pedi-
grees to-day in England which can be taken back to
the Conquest.1

Thus the necessity of changing one's name argued
a connection with and descent from an ancient
family, ergo, it was an aristocratic thing to change
one's name or take a double name. After that, of
course, came the deluge of such changes.

At a much later date came the class who, with no
inherited obligation to do so, were glad enough to
perpetuate by a change of surname, or by the adop-
tion of a double surname, the fact of their descent in
the female line from an ancient house.

At a still later date, probably within the last fifty
years, has arisen yet another class, a typical product
of the days we live in, who, for mere purposes of
distinction, one might say from the necessity of distinc-
tion, have been glad to seize any plausible excuse to
either make a complete change, or more often to

1 Scottish, Welsh and Irish pedigrees are excluded from this
estimate.

CHANGES OF NAME. 45

hyphen on some other name, in the hope that the
combination will be more or less distinctive.

And herein lies another curious exemplification of
what is alluded to above. Whilst aristocratic families
die out, and aristocratic and distinctive surnames
become extinct, the more plebeian families with very
usual and common surnames thrive and multiply ;
and whilst such names as Maltravers, Mauleverer,
Conyers, Fitzalan, De Bohun, &c. have become
extinct, the names of Smith, Brown, Jones and
Robinson still increase and multiply as the sand
upon the sea-shore. And with this steady multipli-
cation and duplication, small wonder that distinction
becomes advantageous. Consequently, as the reasons
increase rather than diminish in the frequency of their
operation, changes and assumptions of names are now
an everyday occurrence.

It is hardly a matter of necessity to follow the
example of Lord Randolph Spencer-Churchill, who,
forgetting that he himself was dans cette galore,
poured forth his scorn on " double-barrelled nonen-
tities." The desirability, the necessity, the wisdom
or the expediency of any change must be left to
every man to decide for himself.

But in any case, if a change is to be made, it ought
and must be made in the properly prescribed and
recognised manner.

It seems to be a very general idea that a man may
change his name as, how and when he likes, seeking
the approval and authorisation of no one save him-
self. Nearly every solicitor will advise one to this
effect, because the law books he refers to and relies

46 TREATISE ON THE LAW CONCERNING NAMES.

upon do not teach him to the contrary. This idea,
unfortunately, is rapidly spreading, and to a great
extent dates from the following dictum of a judge,
who remarked from the bench : " I know of no law
to prevent any man changing his name as often as
he likes, provided that it is not done for the purposes
of fraud."

Now, with regard to a change of name, there are
two views as diametrically opposed to each other as
they well can be. The one is that any man may
assume at his pleasure any name, or as many names
as he choses. The other view is that no change can
properly be made without the sanction of the Crown,
conveyed in a Royal Licence, or else in an Act of
Parliament.

As a matter of fact there is a good deal of truth in
both views, which, as far as the theory of them is
concerned, are not at all divergent.

The former view is chiefly based upon certain
judicial dicta.

Chief-Justice Tenterden remarked [5 Bar-new ell and
Alderson, 535], — "A name assumed by the voluntary
act of a young man at the outset of life, adopted by
all who knew him, and by which he was constantly
called, becomes for all purposes that occur to my mind
as much and as effectually his name as if he had ob-
tained an Act of Parliament to confer it upon him."

Chief Baron Pollock [22 Law Times, 123], remarked,
— " When by any Act of Parliament judges have the
control of a particular roll of names, they will, on
change of name, direct the new name to be added to
the roll, though such name has been assumed without

CHANGES OF NAME. 47

a Royal Licence, and by the mere act of the person
whose name is on the roll."

Sir Joseph Jekyll, Master of the Rolls \Bateman v.
Bateman, 1730 (P. Williams, 65)], remarked, — " I am
satisfied the usage of passing an Act of Parliament
for the taking upon one a surname is but modern,
and that any one may take upon him what surname
and as many surnames as he pleases without an Act
of Parliament."

To the foregoing may be added the remarks of the
Attorney-General in the House of Commons on the
occasion of the introduction by Mr. Macaleese of
the "O and Mac" Bill. The Attorney-General, in
moving the rejection of the Bill, said that it was quite
unnecessary, inasmuch as there was nothing to pre-
vent any man changing his name.

The matter was, however, before Parliament on an
earlier occasion (the discussion of the Jones-Herbert
controversy), and the then Attorney-General re-
marked "that people were not bound to recognise
the illegal assumption of a name."

That is the unquestionable truth of the matter, and
the true position is that whilst there is nothing to
prevent any change of name, no unauthorised change *
of itself creates any right, and nobody can be com- j
pelled to recognise any change which long-established
and universal custom has not sanctioned.

Now let us consider for a moment this other side of
the question.

Chief Justice Tenterden's remarks absolutely pre-
suppose every requirement necessary to create and
establish a perfected particular custom, and are there

48 TREA TISE ON THE LA W CONCERNING NAMES.

fore beyond cavil or question, and his statement of
the law may be accepted for such cases, but for those
only, in which the requirements he lays down have been
fulfilled.

Chief Baron Pollock lays down no proposition of
law, but merely recites a practice which, even if it be
correctly recited, establishes nothing. The language
used, however, leaves little doubt that he was merely
quoting from the action taken by the Lord Chancellor
in the case of Jones or Herbert of Clytha. The version
of the Chief Baron is by no means a true representa-
tion of what actually did occur.

The judgment of the Master of the Rolls was
absolutely upset by the House of Lords, his decision
being reversed (4 Browns Par!. Cases, p. 194), it
being laid down by the House " that the individual
ought to have inherited by birth, or have obtained an
authority for using the name. [See also Leigh v.
Leigh — 15 Vesey, 92, and other cases there quoted.]

That decision absolutely upsets the bold contention
that any man may change his name as he pleases.

Now, in law, wherein lies the necessity for authority ?
What is the authority which is needed ? and why
must that authority be the authority of the Crown or
the higher authority of Parliament ?

The whole thing is wonderfully simple if the
correct initial step be taken in the chain of argument.

A name is an inheritance.

A man could not of himself create or grant an
estate of inheritance to himself. — ( Vide Judgment of
Mr. Justice Chitty in Austen v. Collins — Times, 6th
May 1886, 54 L.T. 903).

CHANGES OF NAME. 49!

Therefore no man can create a name for himself.

Therefore no man can validly change his name by
his own sanction and authority only.

All judicial, executive and legislative power was
originally vested in the sovereign.

That power remains undiminished in every point,
and to the same extent as originally, save where by
express enactment of the State, or by an express
relinquishing by the sovereign, or by the develop-
ment or operation of the common law that power
and authority has been specifically removed or
diminished.

Nothing has occurred to remove from the power
and prerogative of the Crown the right to give a
surname, to sanction the change of a surname, or to
create of its mere motion for any man the inheritance
of a name.

Now land is an estate of inheritance, and precisely
as a man can under squatter's right obtain an inde-
feasible title thereto, not by his own action in
squatting, but by the universal custom of his neigh-
bours and others in permitting him to own the said
land for the specified period which, in this particular
case, the law says shall perfect that custom, so can a
man at birth, or subsequently, change his name, and
acquire the " inheritance " of the new name by the
custom of his neighbours, acquaintances and others,
as and when he can prove that custom, but he has
always to remember that he can compel no man to
conform to a custom until he can prove that custom,
and that whilst there are those who will not conform
to his desire, he cannot prove the custom, and the

4

50 TREA TISE ON THE LA W CONCERNING NAMES.

custom, therefore, cannot exist ; and that the law has
fixed no limit of time (save the common law " memory
of man runneth not to the contrary," i.e., the reign of
Richard I.) to perfect that custom, and that there is
always the dissidence of the Crown weighing against
the custom, which (save in the cases the Crown
recognises) absolutely prevents any one pleading that
custom as authorising any change. Until he can
prove that custom, he has no unquestionable right to
his name, and has established no inheritance in it.

The Crown in affairs of any importance will not
recognise an unauthorised change of name, and in
matters of the creation of a title, the gazetting of a
commission or a presentation at Court, it declines
to recognise a change of name (as to which in less
important concerns it does not trouble to interfere),
unless the change has been made with its sanction or
by Act of Parliament, asserting its own prerogative
to deal with the question.

With the introduction into the subject of the pre-
rogative of the Crown, the question assumes a rather
different aspect.

The Courts have the right to determine whether or
not a given matter is within the prerogative of the
Crown. But once having so determined, and the
decision having been in the affirmative, the matter
is thereafter entirely removed from the cognisance of
the ordinary Courts.

From the earliest times the Crown has in England,
as in some other countries, definitely made the asser-
tion that changes of name and the sanction thereof
are within its prerogative. But there never seems to

CHANGES OF NAME. 51

have been a case in which the Crown has deliberately
put the existence of its prerogative to the test of a
judicial decision, nor does the point ever seem to
have been raised, or a decision given thereupon, un-
less this inferentially follows from the decision of the
House of Lords (ante, p. 48).

But the prerogative being asserted upon good prima
facie grounds, and consistently acted upon, and there
being no decision on the question of prerogative to the
contrary, the whole of the judicial decisions in which
names have been an issue necessarily lose much of
their weight and importance, and cannot be con-
sidered as more (if indeed they could under any cir-
cumstances) than decisions of law upon specific and
stated facts and conditions, and certainly not as
enunciations of canons of law.

With the exception of Du Boulay v. Du Boulay, the
decisions may be divided into two classes, (i) the
sufficient compliance with the requirements of a trust,
(2) the validity or criminality of acts done in an
assumed name. In neither of these classes of case
has any decision been necessary on the abstract right
or validity of a change of name per se without
authority. In the latter class of case the question of
a change of name is immaterial, providing identity
is sufficiently established where proof of this is neces-
sary, which is not always the case. In the former
case it becomes merely a matter of the interpretation
of the specific terms of a specific deed, will or settle-
ment. In such circumstances, naturally the interpre-
tation depends upon the terms. Where it is merely
the expression of a desire — a precatory trust — the

52 TREA TISE ON THE LA W CONCERNING NAMES.

change is not binding or imperative, and consequently
any method of change will do, for, as regards the trust,
even the fact of change cannot be called in question.
The same remarks hold good where the change is
a condition subsequent and there is no forfeiture
clause. Where there has been no prescribed method
of change to be adopted, and where the question is
not complicated by a required assumption of armorial
bearings, it has been held in many cases that an
assumption of the name by Deed Poll, by advertise-
ment, or of mere motion without either method of
publicity, is a sufficient change for the purpose of in-
heritance, or for the purpose of satisfying the condi-
tion. Where any particular method of change has
been specified, it follows as a matter of course that
that particular method must be adopted.

At the same time it is open to very considerable
doubt whether some of the decisions are justified, and
one is inclined to think that a vigorous argument in
favour of the prerogative of the Crown, particularly
if supported by the Crown formally putting forward
its asserted prerogative, would vitiate the past de-
cisions that a change without authority satisfied a
mere condition stipulating for nothing beyond a
change or mere assumption of a name, and where no
particular method of change was specified.

A judicial decision in favour of the prerogative of
the Crown (a point still awaiting determination)
would at once make a change by any other method
than the sanction of the Crown or an Act of Parlia-
ment illegal, and it should be carefully noticed that
the only decision by the House of Lords (see ante,

CHANGES OF NAME. 53

p. 48) definitely and distinctly asserts a change " by
authority " to be essential.

There is this further point to be considered, parti-
cularly if the condition in the will or settlement be
an unqualified command to assume a certain name,
that it is doubtful how far any person has a right
to make such a condition. If a change of name be
a prerogative of the Crown, the matter remains at the
pleasure of the Sovereign ; and no subject has the
right to attempt to command the exercise of or to
fetter the prerogative of the Crown, nor has any
person the right to assume the ability of another to
obtain the passing of an Act of Parliament. There-
fore an unqualified command may be an impossible
condition from which the Courts will give relief (A listen
v. Collins, 54 L.T. 903 ; Kingston (Earl} v. Pierepont, I
Vern. 5; a.nd.Joicey-Cecilv.Joicey-Cecil, loth June 1898),
and the net result is that the condition is inoperative
and void. The utmost limit to which such a condition
can be properly made is that within a specified time the
benefited person " shall petition for and do his utmost
to obtain an Act of Parliament or Royal Licence of
the Crown " that such a change shall be made.

In view of the assertion of the prerogative of the
Crown, and when considering next the judicial dicta
upon which the legal mind is wont to lay such stress, it
should not be overlooked that from the reign of King
Richard II., whilst there existed equal but different
tribunals, with separate but equal jurisdiction, there
has been maintained a long feud and rivalry as to
the extent of their various jurisdictions ; and the
ordinary legal tribunals have been only too ready to

54 TREATISE ON THE LAW CONCERNING NAMES.

pronounce upon matters which really lay without
their jurisdiction. There is a notorious case in which
a judge once declined to admit an affidavit in his
court because a barrister therein mentioned was not
described as an esquire, and gave orders that on all
future occasions a barrister was to be described as
an esquire. Now, the state or rank, whichever it
may be, of an esquire is not within the jurisdiction
of an ordinary judge, and the fact that this certain
judge required the barristers in his court to be de-
scribed as esquires did not make them esquires, any
more than the fact that if he had required them to
be described as elephants would have made them
quadrupeds of that species, for they would still have
necessarily remained, not elephants, but specimens of
the human race. The remarks made in the House of
Lords upon the action of the lower courts at the hear-
ing of the Cowley case are instructive upon the point.
These contested cases, which have been alluded to
already, have been held to prove that the assumption
of a name without a Royal Licence confers a pro-
perty in that name. They prove nothing whatever
of the kind, inasmuch as that point has never been an
issue and has never been tried ; and, if the assertion
of the royal prerogative be justified, the point is
utterly beyond and entirely outside the jurisdiction
of the courts in which these cases have been tried.
The utmost extent of the interpretation of these
decisions is this, that the assumption of a name
without a Royal Licence (provided no Royal Licence
was made necessary by the terms of the will or
settlement) has been in some cases held to be suffi-

CHANGES OF NAME. 55

cient (under the express terms of the particular settle-
ment litigated) for the inheritance of an estate, or
that a name assumed without any specified authority,
and as a mere matter of personal inclination, will
answer many purposes ; for it should be remembered
that the two crucial points upon which nearly every
contested case has hung have been either (i) whether
identity is sufficiently indicated by the use of a
name which has not been ordinarily inherited, or (2)
whether the unauthorised assumption of a name is
sufficient to justify inheritance, and the ordinary legal
tribunals have usually held that it is.

But there is another point. Does such unautho-
rised assumption constitute the creation of a right
to the name ? The answer is emphatically, No.
The gift of a name or a change of name is within
the prerogative of the Crown, and subject to the
jurisdiction of the Crown conveyed through its court
of honour, or such other tribunal as the sovereign
may authorise to determine or select to advise upon a
a specific point. It is wholly outside the jurisdiction
of the ordinary tribunals, which have no power to
adjudicate upon the point, and which we say deliber-
ately have never attempted to do so. A name
assumed without authority is simply an alias, and
has precisely the same weight as the grandiloquent
names which are assumed for the purpose of the
theatre, or the haphazard nommes des plumes which
are adopted by so many writers.

The matter, therefore, hangs on the asserted pre-
rogative and its validity, and it therefore becomes of
importance to trace the assertion of such prerogative,

56 TREATISE ON THE LAW CONCERNING NAMES.

together with its exercise. The first instance of a
change of name by command of the Crown, to which
reference has been made by former writers, occurred
in the year 1106. Nigel de Albini, who (according
to the register of Furness Abbey) was bow-bearer to
Rufus and to Henry I. at the battle of Tenchbray,
dismounted Robert, Duke of Normandy, and brought
him prisoner to the king. Henry gave the lands of
the attainted Robert Mowbray, Earl of Northumber-
land, " in Normandy and England, to Nigel, as a
reward for his great services and bravery ; " and " by
the special command of King Henry" he and his
posterity were commanded to " assume the surname
of Moubray " (Dugdatis " Bar," vol. i,, p. 122), " which
they accordingly did, and retained the same as long
as the issue male continued, which determined in
John Moubray, Duke of Norfolk, in the time of King
Edward IV., whose heirs were married into the
families of Howard and Berkeley." Nigel de Albini
was a Moubray maternally. The value of this pre-
cedent is doubtful, because it has yet to be definitely
proved that the appellation was at that time a surname
and not a territorial designation accruing in ordinary
course from the possession of the lands.

The second case of assumption by command
occurred in the reign of King Edward I., who, dis-
liking the iteration of Fitz in the name of a famous
noble, John Lord Fitz-Robert (whose ancestors had
continued their sires' Christian names as surnames),
commanded him to abandon that practice, and to
bear the local name of the capital seat of his barony
(Clavering), which command Fitz-Robert complied

CHANGES OF NAME. 57

with, and became John de Clavering. The authority
of this precedent cannot be much greater than mere
tradition.

The third case is that of the great-great-grandfather
of the Protector, Richard Williams, a gentleman of
good family in Wales, who changed his name to
Cromwell, in compliance with a wish (which there can
be little doubt was equal to a command) of Henry
VIII., taking that particular name in honour of his
uncle, Thomas Cromwell, Earl of Essex, then a
favourite minister of that king (Dugdatis " Bar"
vol. ii., p. 374).

This Richard Cromwell, on May Day 1540, at a
great jousting at Westminster, which had been pro-
claimed in France, Spain, Scotland and Flanders,
was appointed one of the six challengers against
all comers. On May 2 he was knighted by the
king. On the 3rd he did tourney with the other
challengers against forty-nine. Stowe only notes
the " overthrow of Master Palmer and his horse in
the field " by Sir Richard ; and on May 5 the chal-
lengers fought on foot against fifty single handed,
and again Sir Richard only is named by Stowe
as having done a feat of arms in overthrowing an
Esquire of the name of Culpeper. It is a well-
known fact that the stringent laws enforced by the
Court of Chivalry, or the Earl Marshal's Court, on
the occasion of jousts and tournaments, debarred
any person from entering the lists who had taken
upon himself the surname of another illegally.

Finlayson also quotes, as follows, another case
very much more to the point, which was brought

58 TREATISE ON THE LAW CONCERNING NAMES.

"before King Henry II. and his peers in Parlia-
ment, when the application for the assumption of
a surname (and that surname a local name) was
granted and confirmed to the applicant and his
heirs, and he was summoned thereto by that name."
This statement may be verified on referring to the
worthy Roger Dodsworth's MSS. in the Bodleian
Library, Oxford (Ex praefato Regist. de Cocker-
sand, fol. 72, B.). A copy of this charter may
also be found in Dodsworth's " Monasticon," Dug-
dale's edition, vol. vi., p. 909, entitled " Gilbertus Will,
qui quidem Willielmus fecit se vocaru coram rege in
parliamento Willielmum de Lancaster, baronem de
Kendale," — that is, " Gilbert William, which said
William caused himself to be called William de Lan-
caster, and caused himself to be called in presence
of the king in Parliament, William de Lancaster,
Baron de Kendale."

" Now, from the known jealousy of Henry for his
prerogative, De Lancaster must first have had per-
mission granted him to bring his request before the
Chamber. King Henry II. was not the sovereign
that would sit and hearken to so much assumption
from a subject, and that subject an officer of his
Court (Sheriff of Lancaster) and the son of a justice
of the King's Bench, without having sanctioned the
preliminary steps."

Amongst those who have paid little or no real
attention to the matter, it is a common enough occur-
rence for the prerogative and authority of the Crown
to be denied, for the stated reason that the Crown
has no power to confer a name or make a gift of a

CHANGES OF NAME. 59

patronymic, and has never done so ; and that names
having been originally assumed of mere motion, they
can equally easily be changed. Such an assertion is,
however, wrong. We have here, following Fin-
layson, quoted the historic examples in which the
Crown gave the name of De Mowbray, and in which
Henry VIII. gave the name of Cromwell to a Richard
Williams, who was the male ancestor of Oliver Crom-
well, the Protector, after whose name Vincent wrote
the words " of ever damned memory."

The illegal assumption of surnames was not
tolerated during the days of Shakespeare ; he most
emphatically condemns it in his play " The Taming
of the Shrew " :

" PETRUCIO. Why, how now, gentleman ! Why, this is flat knavery,
to take upon you another man's name."— Act V., Scene i.

Camden quotes a common saying of his time
ridiculing such covetousness ; he writes that a gentle-
woman, Doctor Andreas, the great civilian's wife,
said : " If fair names were saleable, they would be
well bought " (" Rem.," p. 153).

Lord Hoo, in the reign of Henry IV., required a
change of name to be made in connection with the
settlement of his lands, but this being done without
the licence of the Crown, was specifically declared by
the Crown to be void.

There are not many instances which can be
quoted in early times, and as to those which can,
a certain amount of doubt must attach, for it
should be borne in mind that names in those days
were not considered to be necessarily hereditary or

60 TREATISE ON THE LAW CONCERNING NAMES.

stationary, and a man's surname was no more than
an additional description, for the purposes of identi-
fication, added to his Christian name ; and even at a
later date Sir Edward Coke, in his treatise upon law,
distinctly says that a man may have many surnames,
but only one Christian name. It is not therefore
much good attempting to deduce settled rules of law
or arguing very fully upon the practices at that date,
and the foregoing are simply mentioned to show that
from the earliest times the Crown is supposed to have
asserted its prerogative, and occasionally interfered
for this purpose in cases which it deemed of suffi-
cient importance. That the everyday man was not
interfered with, and pretty well pleased himself in
such matters, is simply due to the manner in which
the Crown and the upper classes looked upon the
lower classes as people who had neither right nor
concern in matters of honour. Whatever a plebeian
did in those days in matters of honour was not con-
sidered worth interference with, or likely to jeopardise
the rights of his superiors. The feeling was practi-
cally the same as that by which the liberated slaves
in the United States took, and were allowed to take
just whatever names suited their euphonic fancy.

But when we come to Stuart times, matters had
vastly altered. With the abolition of feudal tenure
in the reign of Charles II., the great barrier which
acted as a division between the upper and the lower
classes was removed. The Crown no longer drew a
distinction between those who owed service direct to
itself and the rest of its subjects, and from that date
the broad distinction between the gentry and others

CHANGES OF NAME. 61

no longer existed. To all intents and purposes, how-
ever, it had been ignored for some time previously.

The Civil Wars which had raged throughout the
kingdom had upset many things, and both the pre-
rogatives of the Crown and many matters of law were
in a state of chaos when King Charles came back to
his own again. The result was a most careful
inquiry into all matters relating to the prerogatives
of the Crown, and from that date those prerogatives
which remained were cherished and asserted, and we
take it that no one yet has presumed to controvert
the principle, which is accepted throughout the whole
of Europe, that matters of honour are prerogatives of
sovereignty ; so that we must look to the Stuart
period for a definite pronouncement upon the subject
of the change of name if this savours at all of a royal
prerogative.

That names and changes of names are matters
within the prerogative of the Crown is neither the
assertion of a modern assumption of authority nor
the reassertion of an authority which has lapsed. So
long ago as the reign of Edward II. a Royal Licence
is said to have been issued to Edmund Deincourt,
that, in accordance with the settlement of his land,
which was specifically authorised, a consequent change
of name and arms should be effected.

With regard to this particular licence, the following
remarks occur in " A Discourse of the Duty and
Office of an Herald of Arms, written by Francis
Thynne, Lancaster Herald, third Day of March, Anno
1605. In a Letter to a Peer" :

" According to which it seems the Law of Arms

62 TREATISE ON THE LAW CONCERNING NAMES.

was in England in Times past ; for that he which had
but only Daughters, or one Daughter to succeed him,
might have licence of the King to alien his Name or
Arms to any other for the Preservation of the
Memory of them both ; as appear'd in the Case of
the Lord Deincourt, in the Time of Edw. 2d whereof
the Record is thus in the Patent Rolls 10 E. 2. part
2 Mem. 13. Rex, &c. Salutem : Sciatis quod quum
pro eo quod dilectus, &c. fidelis noster Edmundus
Deincourt, advertebat & conjecturabat, quod Cog-
nomen suum et ejus Arma post Mortem suam in
Persona Isabella filia Edmundi Deincourt haeredis
ejus apparentis, a Memoria delerentur, ac corditer
affectavit quod Cognomen & Arma sua post Mortem
ejus in Memoria in posterum haberentur ; ad Requisi-
tionem praedicti Edmundi & ob grata & laudabilia
Servitia quae bonse Memoriae Domino Edwardo
quondam Regi Angliae Patri Nostro & Nobis impen-
dit, per Literas nostras Patentes concessionus &
Licentiam dedimus pro Nobis & Heredibus nostris
eidem Edmundo, quod ipse de omnibus Maneriis,
&c. quae de Nobis tenet in Capite feoffare possit
quemcuiq ; velit, &c. Out of the Preamble of which
Deed we gather (as before is said) that because he
had a Daughter which could not preserve his Memory
he might alien his Name and Arms according to the
Law, Because none de Stirpe Agnationis was living
to forbid the same. But withal it is gathered, that
he could not alien the same without Licence of the
Prince (who might dispence with the Law). But
because the Law and Custom had permitted that
Women should inherit with us both Lands, Honours,

CHANGES OF NAME. 63

Name and Arms ; and Quod consuetude dat homo
tollere non potest."

Now, the only licence upon the Patent Rolls which
we have been able to find to Edmund Deincourt is
the licence of which Lancaster Herald gives the
reference, as above quoted, and if this is to be taken
as a precedent and authority, the permission for the
change of name and arms must be presumed inferen-
tially from the preamble. But it will be seen that
this licence refers itself to a previous licence, and this
previous licence we have been quite unable to find.

It seems more likely that Lancaster had simply
gone by the preamble without carefully examining
the remainder of the record, for the name and arms
are not thereinafter specifically dealt with, and the
Royal Licence itself only dealt with the alienation of
his lands and estates from his daughter Isabella to
" William, son of John Deyncourt, whom failing to
John, brother of the said William. Other property
is alienated to Master Oliver Deyncourt and John
Deyncourt of Parkhall." These letters-patent do
not state the relationship of any of the beneficiaries
to Edmund Deincourt, upon which the whole matter
hangs. There is much uncertainty regarding the
Deyncourt descent at this point, but most of the
accepted pedigrees show the earlier-mentioned bene-
ficiaries to be male collateral relatives, who conse-
quently needed no licence to assume the name of
Deincourt, which was already theirs. It seems
strange that the simpler plan of marrying Isabella to
one of her cousins was not adopted, for the lady was
then both young and marriageable, and dispensations

64 TREATISE ON THE LAW CONCERNING NAMES.

for marriage within the prohibited degrees (if the
cousins were so) were common enough and readily
obtainable. But until the pedigree can be positively
set out and the prior licence found, it is difficult to
accept the foregoing as a precedent either way.

But whether Francis Thynne be right or wrong in
his interpretation of this Deyncourt incident, the
extract we have quoted from his " Discourse " is clear
evidence that, in 1605 at any rate, it was the accepted
opinion that a change of name needed the licence of
the sovereign.

Let us now proceed to the reign of Charles II.
There is a warrant which is dated June 6, 1679,
which recites that the Duke of Newcastle had repre-
sented that his son and heir-apparent, Henry, Earl of
Ogle, had married Elizabeth, Lady Percy, sole
daughter and heir to Jocelin, late Earl of Northumber-
land, deceased, and had " earnestly besought us to
grant our Royal Assent, leave and allowance, That he
the said Henry, Earl of Ogle, and the descendants of
his body by the said Eliz. Lady Percie, may assume
and take the surname of Percie, and bear the Armes
of Percie quarterly with his own Paternall Armes,
neither of which may regularly be done according to
the Law of Armes without y*. speciall dispensacon and
Licence of MS, as we are by Our Supream power and
Prerogative the onely Fountain of Honour. Know
ye, therefore, that we of our Princely Grace and
Speciall Favour, at ye humble request of the said
Duke of Newcastle and Earl of Ogle, have given and
Granted, and do by these presents give and grant,
unto him the said Earl of Ogle and to the heirs and

CHANGES OF NAME. 65

descendants of his body to be begotten on ye said
Eliz. Lady Percie, now his wife, and to every of them,
full power, license and authority to assume and take,"
&c. The patent goes on to recite the permission
given, and ends with a clause requiring the warrant
to be duly registered in the College of Arms.

But we are not dealing only with ancient times, for
even so late as the reign of George III., the Crown,
by its letters-patent, specifically gave and granted
the name " of Bladensburg " (to be added to the name
of Ross) to the descendants of General Ross, who
captured Washington from the Yankees. Now there
can be no question of this being a case of the mere
sanction by the Crown of the assumption of another
name. It was a definite and specific gift and grant
of a name, and no one has so far questioned the right
of the Crown to make this gift.

In an article by Lord Dundonald in the Nineteenth
Century ("Protection for Surnames," January 1894)
occur the following sentences : —

" Even as late as Charles the First's reign we have
an example recorded of a fine being imposed on a
person for the assumption of the name of another
family. The defendant was fined £500, and, in the
quaint words of the old record, he was ' ordered to be
degraded and never more to write himself gentle-
man.' "

Where Lord Dundonald got his information from we
cannot say, and it is much to be regretted that he did
not give chapter and verse and full references, as
their omission much discounts the value of the state-
ment. We have but little doubt, however, that it

5

66 TREATISE ON THE LAW CONCERNING NAMES.

reads very much like a judgment of the Earl
Marshal's Court, but it would be like looking for a
needle in a bundle of hay to attempt to locate it
without a further and more detailed reference.

The first Royal Licence, therefore, that was issued
in the present form dates, as we have seen, from the
reign of Charles II., and this method has been subse-
quently, continually and continuously adopted up to
the present time.

But in the early Hanoverian reigns a practice
sprang up of obtaining an Act of Parliament for the
purpose. Probably this was originally due to a de-
sire to create an entail of the lands at the same time ;
and, for the purposes of the entail, an Act of Parlia-
ment was desirable ; and as the assumption was con-
sequent upon the entail, the condition relating to the
assumption was made in the same instrument which
created the entail. And though the question of the
name and arms was a matter of honour, and in the
Royal Prerogative of the Crown, the Royal Licence
upon this matter of honour was contained in and
conveyed by the Royal Assent to the Act of Parlia-
ment. Now most changes of name were consequent
upon entails of land, so that the idea sprang up that
an Act of Parliament was necessary for a change of
name, and such Acts of Parliament were frequent in
the reign of George III.

What actually took place at that period very con-
siderable research has not yet brought us definite
knowledge. A statute of George III. is frequently
referred to, which is supposed to have enacted that
a change under the Royal Sign-Manual and Privy

CHANGES OF NAME. 67

seal was to be held to be equivalent for an Act
of Parliament for the change of name and arms.
This statute is referred to in the Cornhill Magazine
(July 1862), in an article under the heading "Sur-
names and Names," as follows : — " You may go to a
still greater expense if you please, for you may have
an Act of Parliament ; but the statute of George the
Third superseded the Acts of Parliament, by making
changes of name under the Royal Sign-Manual as
legal as when they are effected by Parliamentary
enactment." But we can find no such statute, and
do not believe that any such Act was ever passed.
We are confirmed in this belief by the fact that the
Crown had from a long period asserted the fact that
matters of names were within its prerogative, and had
continually exercised that prerogative, and issued
Royal Licences by virtue thereof, during the whole
of the period within which these Acts of Parliament
were frequently applied for.

Another account of what took place has been
supplied to us, and we believe it to be the correct
one. It is to the following effect : — Many of these
Acts of Parliament related to changes of arms ;
some of the conditions were of such a kind that
it was difficult to reconcile them with the recognised
laws of arms. In addition, the Heralds' College
considered that many of these Acts of Parliament
were in conflict with their chartered and patent rights,
by which they enjoyed the original cognizance and
control of all coat armour. In consequence, the pro-
priety of inserting clauses relating to arms in Acts
of Parliament was questioned by the College of Arms,

68 TREATISE ON THE LAW CONCERNING NAMES.

who approached the Crown upon the point. The
King, in the usual course of events, referred the whole
matter to the law officers of the Crown for their con-
sideration and report. The law officers of the Crown
reported that matters of names and arms were within
the prerogative of the Crown, and that a Royal
Licence to effect the change was a proper and
sufficient course to be adopted, and that it was
unnecessary to obtain an Act of Parliament to con-
firm the personal licence of the sovereign. Certain
is it, that private Acts of Parliament for the assump-
tion of a name have practically ceased since about
that period, and most subsequent lawful changes in
England have been made by Royal Licence. Of
these many hundreds have been issued.

From that time forward the Royal Prerogative has
been universally and continually and continuously
asserted, in the form of a Royal Licence under the
Sign-Manual and Privy Seal.

The question of Royal Licences and changes of
name was on one occasion argued at length in the
House of Commons. The question had arisen with
regard to the celebrated Jones or Herbert of Clytha
case. There is a witty little story told about this case
that Mr. Jones, before making the change, asked Lord
Pembroke — as the head of the Herbert family — if he
had any objection. Lord Pembroke replied that he
had no personal objection in this particular case, but
that if everybody named Jones proposed to adopt the
name of Herbert, he himself felt it would be necessary
for him to adopt the name of Jones.

The circumstances of the case were as follows : —

CHANGES OF NAME. 69

There was settled in the county of Monmouth at
Llanarth and Clytha a family of the name of Jones,
whose ancestors, it would appear, had once used the
surname of Herbert, and were descended from the
same stock as the Herberts, Earls of Pembroke and
Carnarvon. In 1848 Mr. John Jones, of Llanarth,
who was afterwards sheriff of his county, obtained
the Royal Licence for changing his name to Herbert.
It may be presumed that he was chiefly moved there-
to by a natural desire to discard a somewhat homely
and frequent surname in favour of one more euphoni-
ous and infrequent, and probably to emphasise his
undoubted though very remote kinship to the various
ennobled families of Herbert, for the pedigree which
Mr. William (Jones) Herbert published in justifica-
tion of his change shows that the paternal ancestors
had borne the name of Jones for eight generations,
and that some four or five hundred years had passed
by since any of them were known by the name of
Herbert. Both Herbert and Jones are merely pat-
ronymics, and in origin the one is no more distin-
guished than the other. Mr. John Herbert had
married the only child of the late Lord Llanover,
better known as Sir Benjamin Hall, M.P. for Maryle-
bone, who, in his capacity of Lord-Lieutenant of his
county, afterwards raised the discussion by his refusal
to recognise the change from Jones to Herbert made
without Royal Licence by another member of the
family of Jones. It was in 1861 that Mr. William
Jones of Clytha, uncle of Mr. John Herbert, late
Jones, of Llanarth, actuated, it may be assumed, by
the same reasons as had in 1848 moved his nephew,

70 TREATISE ON THE LAW CONCERNING NAMES.

adopted the ancestral name of Herbert in lieu of the
obnoxious one of Jones. Mr. William Herbert, late
Jones, of Clytha, like his nephew, wished for a Royal
Licence. It was indeed suggested at a later date that
the application to the Home Office had been refused,
but he appears to have gone no further in his applica-
tion than to consult one of the heralds, and that, as
the opinion was somewhat hostile to his proposal, he
dropped that procedure, and ultimately effected the
change without obtaining the accustomed permission
for the purpose. Probably this unauthorised change,
of local and personal interest only, would have passed
unnoticed had not Lord Llanover, as Lord- Lieutenant
of Monmouthshire, declined to permit Mr. Herbert of
Clytha to qualify for the magistracy in his new name,
or to grant a commission in the Militia to the son in
any name but that of Jones. It might have been
thought that Lord Llanover in such a matter would
have preferred to see the near relatives of his son-in-
law bearing the same name, and would have assisted
them as far as lay in his power. It is evident that he
held strong views to the contrary. Whether it was
due to any personal feeling or to an exaggerated
view of his duties as Lord-Lieutenant, it is now per-
haps not very material to inquire. However, it was
Lord Llanover who raised the question of Mr. Herbert
of Clytha's right to change his name in the way he
did ; he corresponded upon the matter with various
officials, including the Home Secretary and the
Chancellor, and took the course of publishing the
letter in the newspapers in order to defend, despite
the annoyance it would cause to a near connection,

CHANGES OF NAME. 71

the view he enunciated — "that it was his duty, as
Lord-Lieutenant of the county, to preserve intact the
prerogative of the Queen, who can alone sanction and
legalise a change of name."

In consequence of his persistent refusal to recognise
Mr. William Herbert or his son under any other than
their " real " name of Jones, or to recommend the son
for a commission in the Militia, the subject was at
last brought to the notice of the House of Commons
by Mr. Roebuck in the form of an address for a
return from the Home Office of the names of all
persons who had applied for licences to change their
names since 1850; "of the instances in which such
licences have been granted during that period, to-
gether with a statement of the names of the successful
applicants and of the names which they have been
permitted to assume by Royal Licence ; of the names
of the persons so applying who have been refused
during the same period, with the reasons assigned in
each case for the refusal ; of the principles by which
the Home Office is guided in granting and refusing
such licences, and of the amount of fees demanded
for such licences since 1850, and the manner in which
the moneys received have been applied." To this
motion, which was seconded by Colonel Clifford, the
Secretary of State, Sir George Grey replied. After
stating that Mr. Jones of Clytha had not applied for
a Royal Licence, he said : " The hon. and learned
gentleman (Mr. Roebuck) says there is no doubt that
any person may assume any name he choses without
Royal Licence. Now I am not going to dispute the
legal question. I believe there is no legal right to a

72 TREA TISE ON THE LA W CONCERNING NAMES.

name. Any person may take any name he pleases,
but it does not follow that everybody else will at once
recognise him by tliat name. It is by no means a
matter of course, because a gentleman who has
hitherto been known as Jones suddenly calls himself
Herbert or any other name that whim may direct,
that all the world will immediately acquiesce to the
alteration. In short, this is rather a question of fact
than of law. A man's name is that by which he is
generally known. How he may have acquired it
does not matter. It is his name, and he has the
right to be called by it if it is the name which he
usually receives amongst his friends and acquaintances.
. . . As to the principle by which the Home
Office has been guided in dealing with these applica-
tions, I have to inform my hon. and learned friend
that there is no written law on the subject. About
200 years ago the practice of applying for permission
to change names arose, and in 1783, in consequence
of the frequency of these requests, it was deemed
necessary to put some check on them. A regulation
was therefore made that all cases should be referred
to the College of Arms. That reference, however, is
not necessarily decisive, as it is intended only for the
information of the department. That usage has been
universally adopted, subject to the modification intro-
duced by Sir Robert Peel, that when there are no
plausible grounds for an application, and it is ob-
viously the result of mere whim or caprice, it should
be at once declined without any reference to the
College of Arms, leaving it to the applicant to
exercise the right which the hon. and learned gentle-

CHANGES OF NAME. 73

man said all possessed of changing his name on his
own responsibility."

The Home Secretary further stated that he was
willing to make returns of the number of applications
which have been made and the number which have
been rejected, and to give every information as to the
fees which are paid over to the fee fund. This was,
under protest, agreed to by Mr. Roebuck.

The Solicitor-General (Sir Roundell Palmer) added
that to the best of his belief there was no positive law
on the subject. The fact was that surnames grew up
mostly as nicknames. That very origin showed that
there was no positive law on the subject. It was a
matter of usage and reputation from the beginning,
the name clung to the man, and the law permitted
him to shuffle it off if he could. There was no law
forbidding a man to change his name, but there was
also no law which compelled his neighbours to
acknowledge him under the name he might assume.
. . . When, however, by usage a man had acquired
a name by reputation, those persons in public
authority were obliged to acknowledge this new
surname. There was, however, no principle of law
that any person occupying an official position was
bound to recognise a capricious or arbitrary assump-
tion of names by persons who had no right to them
either by descent or by the requirements of property."

On the subject of Royal Licences, it must be
confessed it is well-nigh impossible to convert the
attitude of the Crown as expressed by the Home
Secretary into a logical or plausible sequence of
reasoned argument. Yet it absolutely expressed

74 TREATISE ON THE LAW CONCERNING NAMES.

what is still the identical frame of mind with which
the Home Office now regards the matter.

Either the Crown has it within its prerogative to
sanction the change or it has not. If it has the right
to sanction and control changes of name, and the
right to demand and receive the fees in payment for
its Royal Licence, then the name should be given
and confirmed, and the prerogative should be judi-
cially tested, and thereafter consistently enforced. Its
officers ought not to make even the semblance of an
admission that there exists any case in which Royal
sanction is not necessary. If it be good law that a
Royal Licence is totally unnecessary for any purpose,
then it hardly seems honest to demand the fees on a
Royal Licence. The argument that the fees are paid
voluntarily and with a knowledge of the exact status
of affairs is discounted beforehand by the fact that
there are various circumstances in which the Crown
compels the procuring of a Royal Licence.

Now, it is not customary for the Crown to swindle
its subjects, and the reply of the Home Secretary,
quoted above at length, is doubtless no more than
the best reply that could be provided at short notice
for a ministerial answer to a Parliamentary question.
The officials know that the sanctioning of changes of
name has been a matter of Royal prerogative from
time immemorial, and the traditions of office prevent
a deliberate relinquishing, but they do not appear to
have the faintest idea of the grounds on which the
Royal prerogative is based, nor the remotest notion
of the reason for, of the action of, or the result of
Royal sanction for a change of name. Once it is

CHANGES OF NAME. 75

grasped and admitted that a name is an inheritance,
the whole thing is absolutely clear and beyond
dispute.

Royal Licences came into general vogue in the
upper classes, where a change of name involved a
change of arms, as a matter of course, and there is no
doubt that the language of a Royal Licence depends
much more upon the circumstances of the change of
arms than the change of name, and the " permissive "
character, of which so much is made in arguing
against the authority of the Crown, is probably due
to the fact that the permission is directed to the
officers of arms, and the Royal Licence is followed
by a patent granting the arms.

Unless it be within the Royal Prerogative to sanc-
tion a change, and unless the Crown really has the
power to enforce the obtaining of its Royal Licence,
as it frequently does, then Royal Licences are abso-
lutely purposeless documents, and it is derogatory to
the dignity and high repute of the sovereign to either
demand or receive the heavy fees which are payable.
But if, as seems almost certain, a Royal Licence is
not only justifiable but is the only legally effective
method (save by Act of Parliament) of making an
authoritative and binding change, then it is a matter
for urgent and weighty consideration whether the
terms in which they are issued should not be revised
so as to render the documents deeds of gift and
grant, and not merely of licence.

Such having been the regular assertion of the
Royal Prerogative, and there being every reason to
believe that not only is it based upon good grounds,

76 TREATISE ON THE LAW CONCERNING NAMES.

but also that it is the only absolutely unassailable
position in the matter, as has already been explained
more fully, it follows that the only unquestionable
methods of change are by the exercise of that pre-
rogative, or by the higher authority of an Act of
Parliament.

PROCEDURE.

Changes of name are either " voluntary " or done
under a condition contained in a will, settlement, or
deed of trust.

Voluntary changes are not controlled in any way
when done by Deed Poll or Act of Parliament. They
are very stringently controlled when by petition and
Royal Licence.

The stamp duty on a voluntary change is ros. when
the instrument is a Deed Poll, and £10 when it is a
Royal Licence.

In either case there is an additional stamp duty of
£4.0 when the change is made under a will or settle-
ment.

It is an utterly anomalous position, which of itself
goes far to demonstrate the illegality of the informal
and unauthorised methods of change, that unless
the terms of the will or settlement specifically require
a particular method of change to be adopted, the
Chancery Division of the High Court will hold a
change of mere motion, evidenced by an advertisement
in the press, to be a quite sufficient compliance for
the purposes of inheritance. In such a case there is
no instrument which can be stamped, and as stamps

PROCEDURE. 77

cannot be collected save upon the actual stamping of
an instrument, and cannot be recovered by an action,
it follows that change by advertisement avoids this
impost.

Nor do we see what instrument can be stamped if
the change is made by Act of Parliament, although
in this method there are certainly loopholes through
which the Crown can make a locus standi to collect
the tax.

It can, however, often be avoided by anticipation.
An heir-apparent or expectant, knowing that he must
succeed in the future, and on succession make a
change in his name, will often find that the circum-
stances of his case are such (see post) that he is justi-
fied in making a voluntary change prior to the date
at which it becomes compulsory. The £40 cannot
be arbitrarily enforced upon what is an absolutely
voluntary change, and the change having been already
made, no further act of change is necessary at the
date of succession, and consequently there is no
further instrument to be stamped.

With the exception of the difference in the amount
of stamp duty payable, the procedure is the same
whether the change be voluntary or otherwise.

Before turning to the methods of change, it will
perhaps be more in the true sequence if we examine
the means to procure the necessity of a change.

Let us first repeat that the mere expression of a
desire that a change be made carries no weight, and
may be, as it often is, quite ignored.

A condition which is a condition subsequent is not
enforceable in the absence of a forfeiture clause.

78 TREATISE ON THE LAW CONCERNING NAMES.

An unqualified command to assume a name, par-
ticularly where this is made to include the assumption
of a coat of arms, is prima facie bad, and doubtless
can be upset if contained in a formal deed. If con-
tained in a will, however, the cy pres doctrine would
probably operate (^Joicey- Cecil v. Joicey-Cedl}^ and
reference should be made to the remarks on page 104.

Now the chief changes of name, both of the past
and of the present time, are changes made in con-
formity with a will or settlement. The following
clause has been modelled on the lines of those which
are regarded as precedents, and upon these nearly all
clauses requiring the assumption of a name or arms
have been modelled, but owing to the loose interpre-
tations of the rules applying to changes of name, we
have inserted the manner in which a change can be
made compulsory : —

" Provided always, and it is hereby agreed and de-
clared (or I hereby declare) that every person who
shall under these presents (or this my will} become
entitled as (legal or equitable) tenant for life, or
tenant in tail (male or in tail), by purchase to the
possession or receipt of the rents and profits of the
\where there is a limitation to tenants in common, say,
entirety of the'] hereditaments hereby settled [de-
vised] (other than a married woman) shall within one
year after he (or she) shall so become entitled \_where
infants may become entitled in possession, add, ' or being
an infant, within one year after he (or she) shall attain
the age of twenty-one years,' vide infra A] : And also
that the husband of every female so becoming en-
titled (not being a peer, or the eldest or only son of

PROCEDURE. 79

a peer, vide infra B) shall, within one year after such
female shall so become entitled, petition for and
endeavour to obtain the Licence of the Crown, or
an Act of Parliament, to enable him (or her) to
assume the name of [Settlor's or Testator's name]
in lieu of, or in substitution for, such other name
or names which he (or she) may have been accus-
tomed to use (vide infra C), unless such person shall
already, by rightful inheritance at birth, or by Royal
Licence, or Act of Parliament, be rightly authorised
to use the said name, and unless in either of the said
cases such person shall be prevented from petitioning
for the same by death : And if the person so entitled
as aforesaid (or, in the case of a married woman, her
husband) shall refuse or neglect within such year to
petition for, and endeavour to obtain, the Licence of
the Crown, or an Act of Parliament, as hereby re-
quired, and fulfil all requirements of such Licence
when so obtained, or shall at any time afterwards
disuse or cease to bear such name \pr name and
arms] in such manner as is before mentioned. Then,
and in every such case, immediately after the expira-
tion of such year, or such disuser, if the person,
or the husband of such person so entitled as afore-
said, shall be a tenant for life, he or she shall,
during the remainder of the life of the person so
entitled, but without prejudice to the uses, estates or
powers, preceding or over-riding the estate of the
person entitled as aforesaid, and to the uses and
estates limited in exercise of such powers, hold the
rents and profits of the said premises in trust for the
person or persons who would for the time being be

8o TREATISE ON THE LAW CONCERNING NAMES.

entitled to the same, if the person so entitled as afore-
said were dead, and so that in such case all powers
annexed to the estate of the person entitled as afore-
said shall cease to be exercisable [and that any ap-
pointment previously made by such person, being a
married woman, of a rent-charge (life or any less
interest) to her husband after her death under the
power hereinafter contained shall be void, and that
the enjoyment of any jointure rent-charge previously
appointed by such person (being a male) in favour of
his wife, or of any portions previously appointed by
such person (whether a male or female) in favour of
his or her younger children, under the respective
powers hereinafter contained, shall not be acceler-
ated], and if the person so entitled as aforesaid shall
be a tenant in tail (male or in tail) by purchase, then
the estate in tail (male or in tail) of such person shall
absolutely determine, and the hereditaments hereby
settled [devised] shall immediately devolve on the
person or persons next in remainder, as if such person
were dead without having had issue inheritable under
such limitation in tail (male or in tail)."

NOTE A. — This may necessitate two changes in
the case of a female, once in her own right, and, after
marriage, in her husband's right ; and if this is not
desired, the clause should be altered accordingly. It
is advisable to call upon a minor, when a male, to
have his name changed immediately upon his estate
becoming vested; and a Royal Licence will be granted
for a minor upon the petition of his (or her) guardian
and good cause being shown.

NOTE B. — This exception is special, and should

PROCEDURE. 8 1

not be put in unless the instructions require it. A
peer has a name as much as a commoner, and can
be called upon to change it in the same manner. A
title has once been changed in a similar manner, but
it is not probable that this would be permitted again.
NOTE C. — The following clauses should be substi-
tuted for the clause in heavy type when instructions
regarding the assumption of arms, &c. or other in-
structions render them necessary, and these will be
found to include all possible cases : —

1. Petition for and endeavour to obtain the Licence
of the Crown, &c. to enable him (or her) to assume
and take the name of in addition to and
after such other name or names which he (or she)
may have been accustomed to use, the name (testator's
or settlor's name) being used as the last and principal
name.

2. Petition for and endeavour to obtain the Licence
of the Crown, &c. to enable him (or her) to assume
and take the name of in addition to such
other name or names which he (or she) may have been
accustomed to use, his (or her) own name (bene-
ficiary's) being used as the last and principal name.

3. Petition for and endeavour to obtain the Licence
of the Crown, &c. to enable him (or her) to assume
and take the name of and to bear the arms
of in lieu of and in substitution for the name
or names and for the arms which he (or she) has been
accustomed to use and bear.

4. Petition for and endeavour to obtain the Licence
of the Crown, &c. to enable him (or her) to assume

6

82 TREATISE ON THE LAW CONCERNING NAMES.

and take the name of in lieu of and in

substitution for the name or names which he or she
has been accustomed to use, and to bear the arms of
either alone or quarterly with such arms
as he or she may be entitled to bear.

5. Petition for and endeavour to obtain the Licence
of the Crown, &c. to enable him (or her) to assume
and take the name of in addition to the
name or names which he (or she) now uses, the name
[settlor's or testator's name] being used as the last or
principal name, and to bear the arms of [settlor's or
testator's arms] either alone or quarterly with such
arms as he (or she) may be entitled to bear.

6. Petition for and endeavour to obtain the Licence
of the Crown, &c. to enable him (or her) to assume
and take the name of in addition to the
name or names which he (or she) may be accustomed
to use, and to bear the arms of either alone
or quarterly with such arms as he (or she) may be
entitled to bear.

The foregoing variations which we have set out at
length may seem somewhat superfluous to those legal
minds which consider the subject no further than the
due and proper or sufficient settlement of the estates ;
but to those who are versed in the laws and require-
ments and in the penalties of armoury, the necessity of
these varying forms to suit the cases which may arise
will be readily apparent. Thus, whilst one testator
may desire that his name alone shall be borne, and
that it shall not be over-ridden by another name used
either before or after it, another testator might be

PROCEDURE. 83

content if he could advisedly rest assured that his
name would be perpetuated in some form or another.
Again, many testators are indifferent to this subject
of armorial bearings, whilst others attach, and rightly
attach, importance to the due perpetuation of the
arms they have inherited.

Considering the expense which is incurred by the
procuring of a Royal Licence, and considering also
the difficulties frequently attendant upon the proof
of the right to the various coats of arms, the advis-
ability may well be questioned of so drawing the
clause that a Royal Licence is necessitated thereby
as in the precedents which we have given ; but we
would point out to those who contemplate inserting
such clauses in the settlements of their estates, that if
they wish to make such clauses and conditions valid
and binding, there is no alternative but to make such
clauses operative only after the obtaining of a Royal
Licence or private Act of Parliament For this
reason, that in spite of all the decisions to the effect
that the mere unauthorised assumption of a name is
sufficient to justify inheritance (when a Royal
Licence is not expressly stipulated for, and where no
question of the assumption of the arms arises), the
fact still remains, as we have already shown, that the
assumption of a name of mere motion is an improper
assumption, and it is absolutely and admittedly im-
possible to lawfully assume a coat of arms without
the sanction and interference of the Crown ; conse-
quently, if the question of a Royal Licence be ignored,
and the assumption of the name be required to be
made by a Deed Poll, the condition is not binding,

84 TREA TISE ON THE LA W CONCERNING NAMES.

and may be totally ignored or can be legally avoided,
inasmuch as it is arguable, and no doubt on some
future occasion will be argued that no man has the
right to assume a name without the licence of the
Crown, and that no man has the right to procure or
require another person to commit or perform an
illegal act. The result would be that such a con-
dition had no weight or effect, and consequently
the wishes of the testator would remain absolutely
inoperative, and the expression of them valueless.

Therefore it behoves every man who desires his
name and arms to be borne by those who are to follow
him (when these future successors are not originally
of that name or entitled to those arms) to take care
that this clause requiring a Royal Licence or Act of
Parliament to be obtained is duly inserted, for by its
due insertion, and by this means only, can a man
enforce upon his successors the fulfilment of his
wishes. There is no clause which has yet been
drafted which can be relied upon to attain this
object, unless it has stipulated for a Royal Licence
or Act of Parliament to be obtained, for the com-
mon law will compel no man to deliberately break
the accepted and recognised laws and regulations of
the Crown.

If it be a matter of indifference whether or not
one's successors take one's name and arms, there is
of course no necessity for such a clause at all of any
sort or kind requiring them to do so ; but if it be
the desire or intention that they must and shall do
so, and shall only succeed to one's property on
condition of having done so, this end can only be

DEEDS POLL. 85

certain of attainment by making the Royal Licence
or Act of Parliament absolutely essential.

The methods of change of name which are known
in practice are (a) of mere motion, evidenced either
by advertisement in the press or by Deed Poll ; (£)
by Royal Licence ; (c) by Act of Parliament Let

us consider them in that order.

»

DEEDS POLL.

The Deed Poll, of course, neither conveys nor
creates any property or right in the new name, nor
does it abolish the old. It is merely the commence-
ment of an attempt to acquire a name by repute
and custom, which custom cannot be created by the
interested person, but must be established through
the agency of and by the courtesy of neighbours and
acquaintances in general, and requires long years to
perfect it as a custom, often several generations, and
which cannot be established against the Crown, and
to which custom, if and when it may interfere, the
Crown always dissents and thereby vitiates. In point
of fact, action of mere motion creates an alias and
nothing more.

If an alias be adopted, ordinary prudence requires
that steps should be taken to create and perpetuate
evidence of the fact of change, by means of which
identity can at any moment be established. This
evidence is usually made by means of newspaper
advertisement alone, or of this in conjunction with a
Deed Poll.

Advertisement alone is unsatisfactory, because old

86 TREATISE ON THE LAW CONCERNING NAMES.

newspapers get destroyed, do not lend themselves
readily to preservation, and back numbers of a news-
paper are often difficult or impossible to procure.

A Deed Poll is merely a declaration under Seal, this
giving it a greater importance than an ordinary docu-
ment, declaring the past fact or the intention of the
assumption of a new name. The deed itself really
amounts to nothing save the creation of evidence,
and (without the slightest inquiry as to its accuracy,
validity or legality) the authority of the Master of the
Rolls is obtained for it to be entered on the Rolls of
the Supreme Court of Judicature. That registration
is merely a preservation of evidence, in a manner
the Crown has appointed and devised for the pre-
servation of any evidence. The registration does
not in any way make the Crown a party to the deed
or its validity, nor does it convey any sanction for the
change ; which change the Crown will contemptuously
repudiate if the point ever comes, e.g., before the War
Office or the Lord Chamberlain's Office or the Home
Office. Neither the Deed Poll itself, nor the registra-
tion of it, nor its advertisement make or authorise
the change, and they neither create nor confirm any
right to or property in the new name. The right to
the new name still requires to be established by the
long custom and repute of other people if and when
that custom can be called into being, and proved to
exist, and have existed. The Deed Poll in itself is
the creation of evidence of identity, the registration
of it is the perpetuation of that evidence, the advertise-
ment is the notoriety of the change and the beginning
of the custom it is desired to create.

DEEDS POLL, 87

But even as mere evidence of identity, the terms of
a Deed Poll have a certain importance, for they must
leave no doubt regarding that identity. The deed
should at any rate recite the date and place of birth
and parentage, and also the date and place of mar-
riage (where this has already taken place), as failing
the inclusion of the details in the deed, it will subse-
quently be difficult to establish either point. It
should also state clearly the reason for the change.
The following may be taken as a model : —

To all and singular whom it may concern, I,
Thomas Henry Johnson, gentleman, presently
residing at No. 10 Queen's Gate, in the Royal
Borough of Kensington, give notice — That
whereas, on or about the 2Oth of January 1834,
John Crowther, of Kensington High Street, in
the Parish of Kensington and County of Middle-
sex, gentleman, now deceased, intermarried at
the Church of St. Clement Danes in the Strand,
London, with Hannah Benson, of the last-
named parish, spinster, now deceased, as his
first and only wife, of which marriage there was
issue one child, and one only, a daughter, bap-
tised at the Church of St. Mary Abbotts on or
about the 5th of February 1835, by the name
of Constance Muriel : And whereas the said
Constance Muriel Crowther, now deceased, inter-
married on or about the loth of June 1858, at
the said Church of St. Mary Abbotts, with
Richard Thomas Johnson, of Seaford, in the
County of Kent, Esquire, in the Commission of

TREATISE ON THE LAW CONCERNING NAMES.

the Peace for the said county, then a widower,
and since deceased : And whereas there was
issue of the said marriage four children, and no
more, of whom I, the said Thomas Henry
Johnson, am the eldest and only surviving son,
and was born on or about the loth of March 1862,
at No. 7 Kensington High Street aforesaid, and
baptised on the 26th of the same month next fol-
lowing at the aforesaid Church of St. Mary Abbots,
and intermarried on or about the I4th day of
August 1898, at the Church of St. Paul, Stratford
Road, in the said Borough of Kensington, with
Helen Julia Vincent of that parish, spinster, now
Helen Julia Johnson, and have issue an only son,
John Crowther Vincent Johnson, born at No. 10
Queen's Gate aforesaid, on or about the i^th of
January in the year 1902 : And whereas I have
succeeded as heir-at-law to considerable property
formerly belonging to and enjoyed by the afore-
said John Crowther, my grandfather : And
whereas I am desirous, out of gratitude and
respect for my said grandfather, to keep his
name in remembrance, now know ye that I, the
said Thomas Henry Johnson, now Thomas Henry
Crowther-Johnson, have assumed the additional
surname of Crowther before and in addition to
my previous surname of Johnson for myself and
my said wife and for my descendants, and that
I intend henceforth upon all occasions to sign
and subscribe myself, and to be styled in all
legal and other documents by the surname of
Crowther-Johnson in lieu of and in substitution

DEEDS POLL. 89

for my former surname of Johnson. — In witness
whereof, I have hereunto set my hand and seal
this 2Oth of March in the year one thousand
nine hundred and six.

(Signed) THOMAS HENRY CROWTHER-JOHNSON.
Formerly THOMAS HENRY JOHNSON.

Witness to the signature of the within-named

THOMAS HENRY CROWTHER-JOHNSON.
(Signed) ARTHUR ELLIS,
Solicitor,

51 Lincoln's Inn Fields.

After the Deed Poll has been registered in the
Supreme Court it is usual to make public notification
of the fact by means of an advertisement, preferably
in The Times. The form following is the one usually
adopted : —

Notice is hereby given, that I, Thomas Henry
Crowther-Johnson, heretofore known as Thomas
Henry Johnson, of 10 Queen's Gate, Kensing-
ton, W., gentleman, have assumed the additional
surname of Crowther, in addition to and before
my surname of Johnson, and that henceforth I
intend to sign and subscribe myself by the sur-
name of Crowther-Johnson in lieu of and in
substitution for my former surname of Johnson,
and notice is also given that such change of
name has been formally declared and evidenced
by a Deed Poll under my hand and seal bearing
date the 2Oth of March 1906, which Deed Poll
has been enrolled in the Central Office of the
Supreme Court of Judicature.

THOMAS HENRY CROWTHER-JOHNSON.

90 TREATISE ON THE LAW CONCERNING NAMES.

But throughout the whole of this procedure it
should always be borne in mind that the right to the
name has still thereafter to be acquired by the custom
and repute depending upon the complacency of other
people.

The cost of a Deed Poll consists of the los. stamp,
the legal charges for drafting and engrossing the deed,
and a small charge for registration. Most solicitors
would carry out the whole business, including the
advertisement, for an inclusive charge of £$, or in
a complicated case perhaps £10. As the cost of
making the change by Act of Parliament need not,
we believe, exceed this sum, as hereafter will be
explained, the popularity of change by Deed Poll is
not easy to understand.

ROYAL LICENCES.

We now turn to the usual method adopted for
change of name by any person of accepted social
position, the only method (save an Act of Parliament),
moreover, which the Crown fully recognises, and that
is by Royal Licence under the Sign-Manual and
Privy Seal of the Sovereign.

This is obtained by submitting a petition to the
King, lodged with an Officer of Arms, and transmitted
by him to the Home Office, the petition being sub-
mitted to the King by the Home Secretary.

It should be at once stated that the issue of a
Royal Licence is a matter of royal favour, arid cannot
be demanded by anybody as a right. Nobody sup-
poses the King personally concerns himself as to the

ROYAL LICENCES. 91

decision, except possibly in some very exceptional
case, which the Home Office in effect may leave to
His Majesty's discretion.

Some of the objections to particular cases raised
by the Home Office are very frivolous and capricious.

In petitioning for a Royal Licence it should not be
forgotten that the terms of the licence follow (with
the addition of conditions) the terms of the petition.

Consequently great care is necessary in 'drafting
the petition that it shall ask for precisely what is
desired.

It is possible that the will or settlement may leave
no choice in the matter, but it is not an infrequent
occurrence for a decision as to the order of the names,
and consequently the terms of the petition to be
decided by the validity or otherwise of the armorial
bearings thereby affected. For example, it is idle to
petition for the arms, which are to be assumed under
the Royal Licence, to be borne quarterly with the
arms of the petitioner when the said petitioner pos-
sesses none. The terms of the petition being then
decided upon, the petition is then drawn up in the
usual form and signed, and transmitted by the
Officers of Arms through the Home Office to His
Majesty. If the prayer of the petition be granted, a
Royal Licence under the actual Sign-Manual and
Privy Seal of the Sovereign is issued and transmitted
to the College of Arms. It is there recorded, and
any exemplification of the arms required under its
terms is made if the same can be made according to
the laws of arms. The fees upon a Royal Licence in
England are somewhat as follows : For a voluntary

92 TREA TISE ON THE LA W CONCERNING NAMES.

application to assume a name and having no reference
to arms, the fees and stamp duty amount to ^"54 : 133.
Upon a Royal Licence to assume a name and arms,
the fees for the Royal Licence and the consequent
exemplification of the name and the arms amount to
£121 ; but to this must be added the cost of estab-
lishing and proving the validity of each separate
coat of arms which is exemplified in pursuance of the
Royal Licence. If the right of the petitioner to his
own arms is recorded in the college, together with
the right of the testator (or, if it be a voluntary
application, the right of the ancestor, with the descent
of the petitioner from such ancestor, whose name he
assumes), there is no additional expense involved, but
if it be found that all or any of the arms are destitute
of authority, the cost of establishing the right thereto
must be added. If the assumption of either name or
arms be in pursuance of a will or a deed of settlement,
there is in any case an additional stamp duty of ^40
imposed by the authorities of the Inland Revenue.
The fees in Dublin are for a voluntary change of
name, £60, or ^100 under a will or settlement ; for
a change of name and arms, ,£120, or (if under a will
or settlement) £160,

The stamp duty consequent upon the change being
made under a will or settlement, i.e., the additional
^'40, can frequently be saved through a little family
arrangement, by making a voluntary application
before the date at which the provisions of the will
or settlement become operative. For instance, if a
person knows that he is likely to benefit under a will
on the condition of assuming a certain name, it is

ROYAL LICENCES. 93

frequently the case that the rules governing these
matters will permit a successful voluntary application
to be made during the lifetime of the testator.

Now the Crown has the absolute right to grant or
withhold at its pleasure its licence and authority for a
change of name, and, if all one hears be correct,
almost as many applications are refused as are
granted. Needless to say the refusals are not the
personal refusals of His Majesty, but emanate from
the Home Office, through which all petitions pass,
and the Home Office has assumed to itself the de-
cision as to whether or not a case shall be put forward
for the personal consideration of His Majesty. In no
circumstances can any one compel either the Home
Office to put forward a petition or His Majesty to
grant his licence. But judging from past experience,
one is able to indicate generally the cases in which an
application is likely to be successful. To begin with,
no case has ever been known in which the Crown has
refused its licence for any change or assumption which
is in conformity with either a will or settlement ', so that
it may be taken for granted that any application for a
Royal Licence in pursuance of the requirements of
either a will or settlement will be granted without the
least difficulty being raised. Applicants desiring to
assume a name under other circumstances must show
what the Crown can consider to be good and suffi-
cient reason why the change should be effected. The
refusals as to which one hears occasionally do not
all seem to be dictated from identical reasons, but it
is difficult to get exact particulars of such cases, and
though one would hesitate to say that the granting of

94 TREATISE ON THE LAW CONCERNING NAMES.

a Royal Licence upon a voluntary application was a
matter of the caprice of the Crown or its officers, one
cannot, however, definitely say that such and such a
case would be invariably permitted, or that such and
such a case would be invariably refused. Certainly
no positive rule can be deduced from precedent.
Consequently, one can only indicate the probabilities
of consent or refusal. These will usually be found to
be somewhat as follows, though as each case has its
special circumstances, it is naturally difficult to speak
with any certainty.

An application to assume a name where no descent
can be shown from any family of such name, and
where it is a mere matter of personal caprice, is almost
invariably refused. There are, however, precedents
to the contrary.

An application to assume the name of a family from
whom descent in the female line exists is generally
granted, if it can be shown that the female ancestor
of that name through whom descent is proved was
an heraldic heiress in blood, or where the applicant
can show that he is an heir of line of any male of that
family.

An application put forward in a case of adoption to
assume the name of the guardian is usually granted if
the application is made by the guardian and in his
lifetime, but the matter is on an entirely different foot-
ing if the application is made merely at the caprice of
the ward, and after the death of the guardian when
the latter has left behind him no indication of his
wish that his ward should adopt his name.

An application to assume the particle " De " in front

ROYAL LICENCES. 95

of a name is usually granted where unquestionable
evidence can be produced of descent from some
ancestor who properly so wrote his name.

A Royal Licence is almost invariably granted to a
bastard to assume the name of his putative father
when the application is made by the father. But if the
application is left until after the death of the father,
and if the latter has left no instructions to that effect
either in his will or in any settlement, the Crown
requires very certain and stringent proof to be pro-
duced of the fact of the parentage before it will grant
its licence, and the mere presumption of illegitimate
descent unsupported by evidence is not sufficient.

The application of a husband to assume his wife's
name (or the name of any ancestor of hers) is usually
governed by the fact of the heirship or otherwise of
the wife. If she be an heiress in blood the application
is usually granted, but it is not infrequently refused
in cases to the contrary. But the Crown does not
sanction the assumption of a name by the wife whilst
her husband is alive, unless the husband joins in the
petition to assume the same name.

The Crown, if reason is produced why its licence
should be granted, does not trouble to decide in what
order the name shall be borne, and in cases where a
Royal Licence is granted, it is usually in the terms of
the petition in which it is prayed for ; consequently,
care should be taken in putting forward the petition
that the request it contains shall be precisely what it
is desired to obtain. Judging by past precedents, the
Crown will grant its licence to bear the new name in
lieu of the old one, or else in addition to and before

96 TREATISE ON THE LAW CONCERNING NAMES.

the old one, or else in addition to and after the old.
It will grant its licence for a name to be borne during
lifetime, but not to descend to the children ; or it will
grant its licence for the new name to descend to all
the children from birth, or to the eldest son only, or
(and this is a frequent limitation) to such persons as
shall succeed to a certain estate or under a certain
settlement. It will grant its licence for a name to
be assumed without reference to the arms of either
family, and in that case the arms remain precisely as
tJiey were previously, and without alteration. It will
grant its licence for a new name and the accompany-
ing arms to be borne in lieu of the old name and
arms. It will grant its licence for a new name to be
assumed in lieu of an old one and the arms of the
two families quarterly. It will grant its licence for
the new name to be used in addition to and after the
old one, and for the new arms to be borne alone. It
will grant its licence for two, three, four or five names
to be borne in a string, but it will not grant its
licence for either a name or a coat of arms to be
borne or discarded at pleasure. The petition must
ask for a definite thing, and if the prayer of the
petition be assented to, that definite thing will be
sanctioned.

The arms for the last and principal surname in
England will always be exemplified in the first and
fourth quarters, with the arms for the first name in
the second and third. But it is possible to obtain an
exemplification and a Royal Licence for two sur-
names to be borne together with the arms of the
assumed name only, provided this assumed name is

ROYAL LICENCES. 97

the last and principal surname ; but arms for the first
name will not be exemplified alone and without arms
for the last and principal name. If it is desired that
the Royal Licence shall confer the right to the two
crests, it is a matter of necessity that the petition
must pray for the two coats of arms to be borne
quarterly, and for the crest of the assumed name
specifically.

Royal Licences have been issued for the use of
three, four, and even five distinct surnames as one
compound name ; but the consequent arrangement of
the arms carries the subject into the highly technical
laws of armorial marshalling, and need not be here
pursued beyond that the arms of the last name always
go first.

But it should not be forgotten that a change of
arms cannot be made without the interference of the
Crown. With regard to the assumption of names,
there are undoubtedly two widely divergent opinions
held strongly by opposing advocates. There is no
alternating opinion about the assumption of arms,
which is admittedly absolutely illegal without the
licence of the Crown. A person who has persuaded
himself that a Deed Poll or a newspaper advertise-
ment is sufficient for his purpose, and imagines he
can at his pleasure adopt the arms of the family
whose name he has appropriated, will simply find he
has rendered himself absurdly ridiculous, has infringed
the prerogative of the Crown, and has handed himself
over to the tender mercies of his many friends and
acquaintances, who will be only too ready to hold
him up to the ridicule his vanity and mistaken

7

98 TREA TISE ON THE LA W CONCERNING NAMES.

economy have richly entailed upon him. After he
has borne the expenses attendant upon his pursuit
and employment of unauthorised methods, and after
he has accepted and lived down the ridicule and chaff
of his acquaintances, and paid the other penalties of
his actions, he will have the opportunity of taking the
happy comfort to himself of the certain and definite
knowledge that at the end of it all he will be no
nearer the desired end, and will be simply using a
bogus coat of arms, and using a name to which the
right has still to be created, which may or may not
happen in the succeeding two or three generations.

When arms are exemplified under a Royal Licence,
and no blood relationship whatsoever can be shown
to the family whose arms they originally were, certain
marks are added to the coat of arms to indicate the
fact. These marks naturally have to be such that
will not interfere with the arms themselves. Usually
it will be found that the mark of distinction is a plain
canton upon a coat of arms, and a cross crosslet upon
the crest ; frequently, however, a cross crosslet is
substituted upon the arms for the canton if this
seems more advisable, and in rare cases other charges
have been introduced for the same purpose. These
marks are made perpetual when blood relationship
will not follow in the future, but when a husband
obtains a Royal Licence to bear his wife's surname or
the surname of some ancestor of hers, the children
will naturally obtain through their mother some
blood relationship to the family whose name has
been assumed. And in such cases the marks of
distinction are governed by a special clause in the

ROYAL LICENCES. 99

patent of exemplification under which the husband
(who has no blood relationship) is required to bear
the marks of distinction, whilst the children (who
have the relationship) are specifically exempted from
so doing.

In cases of illegitimacy a son taking his putative
father's name and arms has the recognised marks
to indicate the fact of illegitimacy added to the arms
in the exemplification, and the Royal Licence is only
granted to him on condition that he bear these, and
it is impossible at any future date for them to be
discarded. But it is desirable to point out that there
is one way out of the difficulty, and that is, that the
condition of the bequest or settlement shall relate
only to the name. It is then open to the son to
obtain a grant of arms to himself without any refer-
ence to the arms of the testator, and this grant de
novo will not contain these marks. But the arms
would be different from the arms of the testator, and
will be an entirely new coat of arms.

In cases where the illegitimate child is a daughter,
a certain procedure has sometimes been adopted,
though whether it is still always possible, we are
unable to say. This procedure is as follows : — The
daughter is ignored in the bequest, which is specifi-
cally made to her husband and his children, on con-
dition that the husband assumes the name and arms.
Now there exists no blood relationship, legitimately
or illegitimately, between the husband and the
testator, and it would be a manifest injury to the
husband to require him to bear marks of illegitimacy
when there is no stain whatever upon his own birth,

ioo 7 RE A TISE ON THE LA W CONCERNING NAMES.

so that the arms will be exemplified to him with the
mark indicative of the absence of blood relationship.
But the daughter must be absolutely ignored, as if
the entail is limited to her descendants in order to
exclude any possible inheritance by other children of
the husband by another marriage, then it is evident
that the bequest is to the daughter and to the descen-
dants of the old family through her bastard descent,
and consequently such descendants must bear the
penalty accruing to the manner of their descent. In
putting forward this method of overcoming the
penalty attaching to illegitimacy, it should be re-
marked that there is a manifest risk of the property
passing in a direction which is not intended, and this
risk should be well weighed before this procedure is
adopted. From the point of view of the laws of arms,
it is somewhat of the nature of a shuffle and is unde-
sirable, and those endeavouring to adopt it will find
that many difficulties are put in the way of its being
carried out.

But in every Royal Licence which is issued the
following clause will invariably be found : — " And to
command that this our Royal Licence and authority
shall first be duly recorded in our College of Arms,
otherwise this our licence and authority be void and
of none effect." And, moreover, if the petition and
consequent Royal Licence concern the arms in addi-
tion to the name, a clause is also inserted that the
said arms " shall be duly exemplified according to
the laws of arms, and recorded in our College of
Arms."

If the petition be that of a bastard, the Roya

ROYAL LICENCES. 101

Licence stipulates that the arms shall be borne and
exemplified with due and proper marks of distinction,
and in the case of a Royal Licence granted to a
person to take the name and arms of a family, to
which family he can show no blood relationship, the
arms are required to be borne and exemplified with
such marks of distinction as may be necessary.

The Crown will not grant its licences without the
aforesaid conditions. Consequently, if the Royal
Licence in any way relates to arms, the recipient of
the royal favour will find it necessary to formally
establish and record the right of the person to arms
under whose will or settlement he derives benefit, or,
if the application be a voluntary one, the right of his
nearest ancestor of the name to those arms which he
is desirous to assume. Further, if the Royal Licence
requires that the arms to be assumed shall be borne
or exemplified quarterly with any other coat of arms,
then it at once becomes necessary to equally prove,
establish and record those other arms.

Consequently, it behoves every testator or settlor
who contemplates inserting in his will or settlement
the clause requiring the assumption of his arms to
take care to ascertain that he himself has an un-
questioned right to those arms, and to establish and
record such right in his own name and person.
When this has not been done, the beneficiary is fre-
quently involved in great expense in establishing and
recording this right, and in obtaining information and
details of proofs which may all the time have been
within the personal knowledge of the testator or
settlor.

102 TREATISE ON THE LAW CONCERNING NAMES.

Now it is a curious fact, and one singularly indica-
tive of the vanity of a nouveau ricke, that fully half
of the arms, which under wills or settlements are
required to be assumed, are found upon investigation
to be bogus or void of authority, or (what is perhaps
more frequently the case) that the right of the
testator or settlor to the arms which he had assumed,
and which he desired to perpetuate, was absolutely
incapable of proof.

Now the Crown will not allow any man to meddle
with the arms of a family to which he is not allied, or
to which he himself could show no claim ; conse-
quently a clause in a will which related to a specific
coat of arms by description would be held to be
absolutely void, unless the testator or settlor himself,
or his proved and admitted ancestors, unquestionably
had a right to bear those arms in some manner or
other ; so that, if the testator desires that there shall
be no question as to what arms he intends shall be
assumed, he would be well advised to ascertain what
are his own rights in the matter. It is seldom, how-
ever, that a will or settlement specifically details a
particular coat of arms by a formal and technical
description thereof. A beneficiary is usually only
required to assume the name and arms of, for
example, Smith. The Crown then grants its licence
to the petitioner to assume the name and arms of,
e.g., Smith, such arms being first duly exemplified
according to the laws of arms in the College of Arms.
The matter is thus specifically committed by the
Crown to the control and jurisdiction of its College
and officers of arms. It is no good kicking against

ROYAL LICENCES. 103

the authority of the College, for the officers of arms
are the officers of the Crown, and the Royal Licence
is only granted on condition that the Royal Licence is
recorded in the College of Arms, and that the arms
are there exemplified according to the laws of arms.

Therefore, unless the arms can lawfully be exem-
plified according to the law of arms, the College of
Arms will point blank refuse, and rightly refuse, to
exemplify them. It is not the faintest use trying to
bring pressure to bear upon the College of Arms,
because the officers of arms are under no control
whatever save that of the Crown, whose officers they
are, and that of the Earl Marshal, who has been
placed in control of the College by the Crown, and
neither the Earl Marshal nor the Crown will interfere,
unless the arms can properly be exemplified accord-
ing to the laws of arms.

The frequent result is that many arms which are
required to be assumed by will or settlement are
incapable of lawful exemplification, and a deadlock
immediately ensues. Consequently, there is a fault in
the inheritance, for the licence to assume the name
is granted subject to a condition which, being impos-
sible of fulfilment, renders this licence absolutely
void and of none effect. Though it has occasionally
been held in the ordinary law courts that where the
will or settlement does not specifically stipulate for
a Royal Licence to be obtained, the assumption of
a name by mere motion is sufficient to justify in-
heritance, no law court has up to the present pre-
sumed to take upon itself to say that the assumption
of arms of a man's mere motion, and without the

104 TREATISE ON THE LAW CONCERNING NAMES.

interference of the properly constituted Crown autho-
rities, is a sufficient compliance with the clause in a
will or settlement requiring arms to be assumed.
Consequently, if the will or settlement relates to the
assumption of arms, which arms are incapable of
lawful exemplification, the result, as we have said, is
an immediate deadlock. There are two ways out of
this, and, to the best of our knowledge, only two.
The Crown is usually willing to grant new arms
which may be lawfully borne and lawfully exemplified,
in order to comply with the stipulation in the will or
settlement. This is the course usually adopted, but
it stands to reason and is evident that these arms are
not the exact arms that the testator used and wished
his successors to assume, but this is the only manner
in which the Crown will permit the attempt to be
made to fulfil the requirements of the will. The
other method, which is but seldom adopted, but
which in the eyes of the law is perhaps the safer
plan, is the course which was taken in the recent case
of Joicey-Cecil v. Joicey-Cecil. The course is simple.
The matter is taken to the Chancery Division of the
High Court of Justice, and it is demonstrated before
the judge there sitting that the will or settlement
contained the clause for the assumption of arms or of
certain arms ; that the testator or settlor had no right
to arms or to those certain arms ; that the Royal
Licence granted in pursuance of the petition con-
tained the usual clause to the effect that before it
could take effect, arms, or these certain arms, should
" first be duly exemplified according to the laws of
arms in our College of Arms ;" otherwise the Royal

ACTS OF PARLIAMENT. 105

Licence to be void and of none effect ; that these arms,
being illegal, were incapable of lawful exemplification,
and that the College of Arms refused to exemplify
them.

Such demonstration having been made, the Court
will make a declaration that the condition requiring
the assumption of the arms is a condition incapable
of being complied with, and that therefore it is in-
operative, and may be disregarded.

Therefore it will be seen that the vanity of the
nouveau riche, which has required the assumption of
his name and of arms to which he had no right title,
has simply involved his beneficiaries in the expenditure
of large sums of money, and in costly litigation, with-
out having had the least permanent effect for the
furtherance of his desire. Therefore we emphatically
say that it is foolish to insert a clause requiring the
assumption of arms either as a condition precedent or
as a condition subsequent, unless the testator had
himself an unquestioned right to bear arms. With-
out such a right, as has been shown, the insertion of
the clause will have no effect whatever, and can be
eventually overridden and ignored.

ACTS OF PARLIAMENT.

With regard to Acts of Parliament, it does not
need the lore of a constitutional lawyer to be able to
assert that an Act of Parliament can do anything.
An Act of Parliament for change of name proceeds
upon very similar lines to any other private Act
But as it is quite impossible for an ordinary person

106 TREA TISE ON THE LA W CONCERNING NAMES.

to self-conduct his own Act, little, if any, purpose
would be served by a lengthy recital in these pages of
the ordinary parliamentary procedure of a private
Act. The cost of a private Act varies according to
different circumstances, and it needs a somewhat
careful examination of the table of fees to estimate
the cost. These fees, however, do not include the
necessary services of counsel, solicitors or parlia-
mentary agents. But making quite adequate pro-
vision in such direction, the entire cost of a private
Act for a change of name would probably come to
about £200, or perhaps rather less.

But the experiment has never yet been tried of
running an Omnibus Act. There is nothing whatever
in the Standing Orders of either House in contra-
diction of such action, and it stands to reason that if
twenty people all desiring to change their names are
jointly resposible for one Act of twenty clauses, the
estimated cost of £200 when divided would be only
some £10 each, which is little more than the expense
involved in a change by Deed Poll, whilst an Act of
Parliament is of greater weight and authority than
even a Royal Licence. It is desirable that some one
should secure the co-operation of sufficient people to
enable the experiment to be made, and if this is ever
done, perhaps in some future edition of the present
work it may be possible to publish the results of the
attempt. It may be noticed that an Omnibus Act of
this kind is the procedure enforced in the United
States, and if it prove to be possible to carry out
such procedure in this country, then it follows that a
method of change will have been demonstrated of

THE NAMES OF BASTARDS. 107

which the cost is no more than that of a Deed Poll,
and which will validly create an unquestionable right
to a new name, without submitting the desire to the
capricious vagaries of Home Office control. That
control may be, and probably is, exercised on some
intelligible lines, but after long experience, we confess
we are often puzzled to supply a motive or logical
reason for many official happenings.

THE NAMES OF BASTARDS.

There is a very popular idea that the surname of a
bastard is that of its mother. The supposition is
absolutely erroneous. A bastard is " filius nullius,"
and in the eye of the law no more the child of its
mother than the child of its father. It has no
surname at all by inheritance.

It must acquire a name by repute, that is, it must
(theoretically) wait until the popular reputation of
neighbours, acquaintances and others has conferred a
name upon it. What period must elapse before such
a name, acquired by repute only, can crystallise into
a heritable possession, no one can say. For the
ordinary purposes of life a comparatively short
period will suffice. But when one comes into con-
tact with the Crown's authority and prerogative in
such matters, the question is on a different footing.
We have known the necessity of a Royal Licence
insisted upon in the third generation.

It is difficult in attempting to deduce a rule of
practice from known precedents, however, to decide

io8 TREATISE ON THE LAW CONCERNING NAMES.

how much differentiation should be made on account
of cases dealing not only with the name, but also with
the arms. By the technical rules of the science of
armoury, a Royal Licence is obviously essential before
a bastardised version of a coat of arms can be exem-
plified, and on this account many precedents of non-
recognition may need to be discarded as precedents, if
considered as precedents to be regarded, in reference
to changes of name only. On the other hand, pre-
cedents of recognition of a name may obviously be
nothing of the kind, for the Crown may have had no
knowledge of the real facts. Many precedents we
are aware of are obviously discounted for that reason.

The absurdity of the supposition that a child
inherits its mother's name is flagrantly apparent if
the case be considered of the bastard child of a
widow or married woman. In such a case the child,
under the popular idea, would be and often is saddled
with the name of the previous husband of the mother,
the very person who had nothing to do with its birth,
and from whom the child derives not an atom of blood
descent. The matter is best evidenced in the case of
the bastard child of a widow, for, of course, a child
born in wedlock is presumed to be legitimate, and
legally inherits the name of its mother's husband for
so long as that legal presumption legally continues.

But the fact that a child not born in wedlock does
not inherit its mother's surname cannot be too widely
known, for, unfortunately, clergymen of the Church of
England are much given to enforcing upon a bastard
child the use of the name of the mother. A scanda-
lous case of the kind occurred within the knowledge

THE NAMES OF BASTARDS. 109

of one of the writers. A child was born shortly
before the marriage of its parents, but the circum-
stances of its birth were such that its illegitimacy was
absolutely unknown to the outside world, and the
child grew up to adult years known (as, of course,
were the other children born after marriage) by its
father's surname. Never once in the course of its life
had it been known by the mother's surname. The
banns of its marriage had been published in the
father's name, when it suddenly came to the know-
ledge of the clergyman that its birth was illegitimate,
and he insisted in republishing the banns in the
mother's surname. A more unjustifiable act can
hardly be conceived. But such officious and illegal
interference is not uncommon. Banns of marriage —
a notification to the public — ought to be published in
the name by which the person is ordinarily known, or
they defeat the very purpose for which they exist.

An illegitimate child is generally brought up in the
family of the mother, and therefore is usually known
by the mother's surname. But there is nothing in
law, nor is there any custom enforceable in law, which
requires a bastard child to take its mother's surname.
There is nothing beyond the circumstance that in
most cases that eventually proves to be the surname
acquired by reputation. If the circumstances prove
that the reputation is in another name, the father's,
for example, or the surname of a parent by adoption,
then the child has as much or as little (whichever it
may be) right thereto as it would have had to the
mother's name.

Upon baptism the child acquires an absolute right

I io TREATISE ON THE LAW CONCERNING NAMES.

to whatever names have been given in baptism. There
is no reason in law or custom why an illegitimate
child needs any " surname " over and above its baptis-
mal names. A single baptismal name would not in
practice be found sufficient for ordinary purposes, but
when two or more names are given, there is not the
least necessity for the addition of anything further.
The obvious corollary of this assertion is the advice to
first decide what surname it is desired that the child
should be known by in after life, and to give that
surname as the last baptismal name.

The argument upon which much discussion is based
that " obviously a child must have a name " is falla-
cious as thus put, for we know of no law or custom
which, in opposition to the repute commenced and
adhered to by the child's relatives, and adhered
to by the child itself on reaching years of discretion,
can fasten upon the child a name he has not inherited
and disclaims.

Providing the filiation can be indubitably proved
(and stringent proof is always required), a Royal
Licence can usually be obtained to "assume and take"
the surname of the father, or else " to continue to use "
that surname, if the reputation has been acquired
therein. A Royal Licence is equally necessary and
equally obtainable to use the mother's name, though
we are aware of no precedent of a case dealing with
the name only and having no reference to the arms.
Nor are we aware of a precedent of a Royal Licence
to a bastard to take the name of a more remote
ancestor, but it seems an obvious and logical con-
clusion that, if on proof of filiation from one person

THE NAMES OF BASTARDS. ill

from whom no inheritance can be alleged, a Royal
Licence is obtainable, it should be equally available
for the name of another. But Royal Licences being
no more than matters of grace and favour, no one can
demand that favour as a right, no matter how logical
may be the basis of the request therefor, if the Crown
prefers to refuse.

INDEX.

ACTS OF PARLIAMENT, 4, 8, 46, 47,

66, 76, 77, 83, 105, 106.
Acts of Parliament (Scottish), 12, 37 ;

(Irish) 38, 39 ; (of George III.) 67 ;

(Registration of Birth) 5.
Acton, 32.

Advertisement, 85 ; model for, 89.
Albini, Nigel de, 56.
Aldersey, 32.
4 'Alias, "29, 55, 85.
Analysis of name origins, 25.
" Ap," 19, 27, 28, 29, 31.
Aristocratic surnames, extinction of,

43, 45-

Arms, changes of, 81, 91, 96, 97, 100,
101.

Arms, change and exemplification of,
by Royal Licence, 91.

Arms exemplified without blood re-
lationship, 98.

Arms, grant of, 104 ; right to bear,
101; proof of right to, 101, 102, 103.

Arms, unauthorised, £2, 102, 103.

Ashurst, 25.

Assertion of Crown's prerogative, 50,

5i, 75-

Assumption of arms, 83.
Attorney- General, 47.
Attwood, 25.
Austen v. Collins, 48, 53.
Authority necessary for a change of

name, 48, 49, 52, 53.

BAPTISM, 4, 5, 6; adult, 6; bastard,

1 06 et seq.

Baptismal names, 24, 25.
Bardsley, 23, 24, 25.
Baronies by writ, 43.
Barristers, 54.

Bastard arms, 99, 101.
Bastards, names of, 106 et seq.
Bastards, Royal Licences to, 95, 99,

100, joi, 106 et seq.
Bastardy, 27, 28.
Bateman v. Bateman, 47, 48, 51, 52,

53-

Battle Abbey Roll, 20.
Beelzebub as a name, II.
Benbow, 25.
Benefit of Clergy, 3.
Berkeley, 56.
Birth, registration of, 5.
Bishops, signatures of, 12.
Black, 25, 39.
Black-woods Magazine, 35.
Bladensburg, Ross of, 65.
Bodleian Library, 58.
Boulay. Vide Du Boulay.
British origin, 26.
Brown, 39, 45.
Buckmaster, 25.
Butler, 39.
By water, 25.

CAMDEN, 59.

Cameron, 32, 35 ; (Lady Margaret)

33-

Carpenter, 39.
Caution necessary as to drafting of

clauses, 84.

Cecil. V\&e Joicey- Cecil.
Celtic names, 38.
Ceremonials, religious, 10.
Change of arms, 81 et seq.
Changes of description, 18.
Changes of name, 42 et seq., 55; by

advertisement, 85 ; by Act of

Parliament, 105 ; by Deed Poll,

8

INDEX.

85 ; by Royal Licence, go ; how
to make compulsory, 77 et seq. ;
early instances of, 56 et seq.; with-
out authority is only an alias, 55 ;
procedure, 76 et seq. ; of Christian
names, 4, 8, 9.

Charles II., 60, 64.

Chattan, chief of Clan, 34.

Chester, 39.

Chief of a Scottish clan, 33, 34.

Chitty, Mr. Justice, 48.

Christian names, 2, 31 ; omission of
use, 1 1 ; change of, 4, 8, 9.

Churchill, Lord Randolph Spencer-,

45-

Clans, 33, 34 ; Clan Chattan, 34.
Clauses, precedents for change, 78 et

seq. ; of arms, 8l.
Clavering, 56, 57.
Clergy and registration of names, 7>

8, 1 06 et seq.
Clergy no veto on choice of name,

II.

Clifford, Col., 71.
Clifton, 32.

Cluny Macpherson, 32.
Clytha, 69.

Coke, Sir Edward, 60.
College of Arms, 65, 67, 72, 91, 102,

103.
Condition as to assumption of name,

53-

Conditions of a Royal Licence, 100.
Conditions requiring a change of

name, 77 et seq.
Contested cases. 54-
Contract based on fraud, 42.
Cook, 21, 39.
Conyers, 45.
Corbet, 32.
Corke, 39.

Cornhill Magazine, 28, 67.
Cornish Rhyme, 26.
Cornwall, 26.
Cost of an Act of Parliament, 90, 106 ;

Deed Poll, 90 ; Royal Licence,

92.

Coivley case, 42, 54-
Craggs-Eliot, 12.
Craster, 32.
Cromwell, Thomas, Richard, Oliver,

57, 59-
Crown dissents to Deeds Poll, 85.

Crown, prerogative of. Vide Pre-
rogative.
Culpeper, 57.
Custom, 40, 50.

DATE of origin of surnames, 22.

Daughter, illegitimate, 99.

" De," 16, 25, 95.

Deadlock with bogus arms, 103.

De Bohun, 45.

Decision as to Royal Licences, 91.

Decisions, judicial, 46, 47.

Decision of House of Lords, 48, 51,

54-

Dedication of Llangollen Church, 28.
Deed Poll, 9, 52, 76, 77, 85 et seq.y

97-

"Dei," 27.

Deincourt, 6 1, 62, 63, 64.
De Lancaster, 58.
Descriptions not surnames, 17;

changes of, 18.
Difficulty in consideration of subject

of names, I.

Disregard of prerogative of Crown, 2.
Distinction, marks of, 98, 101.
Disuse of Acts of Parliament, 67.
Dodsworth, Roger, 58.
Donside, 36.
Douglas, 35.

Double-barrelled nonentities, 45.
Du Boulay case, i, 42, 51-
Dublin, 39.
Du Cange, 14.
Dugdale, 57, 58.
Dundonald, Lord, 65.
Dunsany, Lady, 13.
Duplicate Christian names, 14.
Duty of a herald, 61.

EARL MARSHAL, 103 ; Court, 57,

66.

Early instances of change, 56 et seq.
Ecclesiastical law and names, 3.
Education Department, 22,
Edward I., 56; II., 61 ; IV., 39;

VII. , 13.
Eliot, Lord, 12.
Elizabethan plays, 29.
English practice as to use of "of,"

1 8.

English pedigrees, 29.
" English Surnames," 23.

INDEX.

"5

Enrolling of Deed Poll, 86.

Esquires, 54.

Essex, Earl of, 57.

Estate of inheritance, 48, 49.

Estcourt, 32.

Evans, 31.

Evasion of Stamp Duty, 76, 77, 92,

Evasion of heraldic bastardy marks,

99, 100.

Exemplification of arms, 91.
Expenses of a Royal Licence, 83 ; and

vide Cost.

Extinction of surnames, 43.
Eyton, 32.

FAIRFAX, 25.

Falconer, 25.

False names, 41.

Fees on Royal Licences, 71, 91, 92.

Female, change by, 80.

Fettering of prerogative, 53.

Field, 25.

Fife, Duchess of, 13.

Fine for assuming a name, 65.

Finlayson, 57.

" Fitz," 19, 27, 28, 56.

Fitzalan, 45.

FitzGibbon, 25.

Fitz-Hamon, Mabel, 28.

Fitz- Robert, 56.

Fitz-Roy, Robert, 28,

Fletcher, 21.

Foundlings, 25.

Fountain of honour, 64.

Fox, 25.

Fraser, 35.

Fraud, contract based on, 42.

Frivolous Home Office objections, 91.

Front names, 2.

Furness Abbey, 56.

GATACRE, 32.
George III., 43, 65, 66.
Gift of name, 55, 65.
Gilbert, William, 58.
Godwinson, 15.
Grant, 35.
Grant of arms, 104.
Grey, Sir George, 71.
Guelph, 13.

HALL, SIR BENJAMIN, 69.
Hardman, 5.

Hayward, 25.

Henry I., 27, 28, 56; II., 58 ; VIII.,

30, 31-

Herald, Duty of, 61.
Herbert controversy, 47, 48, 68 et seq.
Hereditary character of surnames,

origin of, 14, 19.

Hereditary origin of Welsh names, 30.
Holloway v. Holloway, 42.
Home Office, 70, 71, 72, 86, 91.
Home Secretary, 70, 73, 90.
Hoo, Lord, 59.

House of Lords' decision, 48, 51, 54.
Howard, 56.
Hunter, 25.
Hughes, 31.
Husband, Royal Licence to take

•wife's name, 95.

IDENTITY, 55 ; evidence of, 86.
Ilk, of that, 33.
Illegitimacy. See Bastardy.
Inheritance of a name, 40 ; estate of,

48, 49.

Irish Acts of Parliament, 38, 39.
Irish names, 37-39.
Irish pedigrees, 44.

JACKSON, 21.

Jekyll, Sir Joseph, M. R. 47, 48.

Jewish names, 9, 10.

Johnson, 21.

Joicey • Cecil v.Joicey- Cecil, 53, 78, 104.

Joke, 29 (bis), 32, 33, 36, 68.

Jones, 31, 45.

f ones- Herbert controversy, 47, 48,

68 et sag.
Judicial decision awaited, 52 ; of

House of Lords, 48, 51, 54.
Judicial dicta, 46, 47.

KERR, 35.

Kildare, 39.

Kingston (Earl) v. Pierepont, 53.

Kinsale, 39.

LAIRD, The, 32.

Lamond, 33.

" Lan," 26.

Lancaster Herald, 6l, 63, 64.

Landholders, 16 ; by male descent, 43,

Land hunger, 32.

Lands, designation from, 32.

INDEX.

Lane, 25.

Langton, 32.

Law as to names in early times, 60 ;

no positive, as to names, 73.
Law officers of the Crown, 68.
Legal aspect of surnames, 39 et seq,
Leigh v. Leigh, 48.
Leofricson, 15.
Liability, 55.
Little, 25.
Llanarth, 69.
Llangollen Church, 28.
Llanover, Lord, 69.
Lloyd of Stockton, 29.
Local names, 24, 25.
Lochiel, 32, 33.

Lockwood, Sir Frank, 32 ; Lady, 33.
London Directory, 25.
Lord Chamberlain's office, 86.
Lord Chancellor, 48, 70.
Lords, House of, decision, 48, 51) 54-
Lowther, 32.
Lyon Office Act (1672), 12, 37.

" MAC," 19, 27, 38, 39, 47.

Macaleese, Mr., 39, 47.

MacGregor, 35 ; Acts relating to, 37.

Macintosh, The, 33.

MacLeod, 33.

Macpherson, 32.

Mactaggart, 35.

Magna Charta, 15.

Male descendants of Royal Family, 43.

Male descent landholders, 43.

Maltravers, 45.

Marks of distinction, 98.

Mason, 25.

Master of Rolls, 86.

Mauleverer, 45.

Memory of man, 50.

Minor, change by, 80.

Model of a Deed Poll, 87, 88, 89.

Monasticon, 58.

Money Lenders Act, 9.

Mowbray, 56, 59.

Myeth, 39.

NAMES, right to, 55 ; property in, 54 ;
no legal right in, I, 72 ; procedure
as to change, 76 el seq. ; impossi-
bility of definition, I ; by repute,
73 ; front or Christian, 2 ; difficulty
in consideration of subject, I ;

choice of, 1 1 ; of bastards, 1 06 et
seq.; derived from office and trade,
19 ; conferred by neighbours, 23 ;
registration of, 5, 6 ; evolution of
front, 2 ; false and marriage, 41,
42 ; a hereditament, 40 ; estate of
inheritance, 48, 49 ; extinction of
aristocratic, 43 ; changes of, 42 et
seq. ; and vide, also Christian
names, front names and surnames.

Newcastle, Duke of, 64.

New grant of arms, 104.

Nicknames, 20, 24, 25.

Nineteenth century, 65.

Nonconformity, 5, 10.

Norfolk, Duke of, 56.

Norman Conquest, 15 ; names, 1 6,
17, 20, 21 ; pedigrees, 29.

Northumberland, Earl of, 56, 64.

" O," 19, 27, 38.

" O and Mac " Bill, 39, 47.

Occupative names, 24, 25.

" Of," English and Scottish practices
as to use of, 18.

"Of that Ilk," 33.

Officers of Arms, 90, 103.

Official names, 19, 24, 25.

Ogle, Earl of, 64,

Origin of surnames, 13 ; of their
hereditary character, 19 ; of Irish
names, 37, 38, 39 ; of Scottish
names, 32; of Welsh names, 27, 30.

Owen, 31.

PALMER, Master, 57 ; Sir Roundell,

73-

Patronymic names, 19, 26, 31.
Pedigrees, male, since Conquest, 44.
Peel, Sir Robert, 72.
Peeresses, names and signatures, u,

12.

Peers, names and signatures, n, 12;

changes by, 80, 81 ; Royal Licences

to, 12.

Pembroke, Earl of, 68.
"Pen," 26.

Penalties in change of arms, 82.
Penalty for omitting to make entry in

register, '/.
Percy, Lady, 64, 65.
Permissive character of a Royal

Licence, 75.

INDEX.

117

Petition for a Royal Licence, 91.
Petitions which will be granted, 93 ;

refused, 94.
Plantagenet, 13.
" Pol," 26.

Pollock, C. B., 46, 48.
Popular idea as to change of name,

45-

Portland, Duke of, 12.
Powell, 31.

Powis, Countess of, 12.
Prayer Book, 6.

Precedent for a Deed Poll, 87, 88, 89.
Precedent for an advertisement, 89.
Precedents for clauses to enforce

change of name, 78 et seq.
Prerogative of the Crown, 2, 49, 50,

52, S3. 55 ft seq., 61, 64, 65, 66,

68, 74, 75-

Preservation of evidence, 86.
Price, 31.
Princess Royal, 13.
Procedure, 76 et seq.
Proof of right to arms, 101, IO2, 103.
Property in name, 54.
' ' Protection for Surnames," 65,
Pugh, 31.

REASON for disuse of Acts of Parlia-
ment, 67.
Refusals of Royal Licences, 91, 93,

96, 97-

Registrar- General's Report, 35.

Registration of birth, 5.

Registers, alterations in, 8.

Relief from assumption of bogus
arms, 104 ; from marks of dis-
tinction, 99.

Reputation, 73.

Richard II., 53.

Right in names, no, i, 55-

Right to assume name at plaasure,

71-

Robert of Gloucester, 28.
Robinson, 21, 45.
Roebuck, Mr., 71.
Roll of Battle Abbey, 20.
Roman Catholic names, II.
"Ros,"26.

Ross of Bladensburg, 65.
Royal favour, Royal Licence a, 90, in.
Royal Licence, 46, 54, 61, 66, 67,

68, 71, 73, 74, 75. 76, 83, 90 et seq.

Royal Licence (temp. Charles II.),

64 ; to Peers, 12, 13.
Royal Licence only effective method

of change, 75.

Royal Prerogative. Viae Prerogative.
Royal Sign-Manual, 66, 68, 90.
Royalty, name and signatures of, 13.
Rules of Home Office, 72, 73, 74.

SAXON surnames, 14, 15.

Scottish Acts of Parliament, 37 ;

clans, 33 ; designations from lands,

32 ; names, 31-37 ; practice as to

use of ' ' of, " 1 8 ; pedigrees, 44.
Scott-Portland, 12.
Shakespeare, 59.
Signatures of peers, n, 12 ; peeresses,

II, 12 ; royalty, 13.
Sirename, 14.
Skryne, 39.
Slater, 25.
Smith, 21, 39, 45.
Sobriquet names, 24, 25.
Solicitors' advice as to change of

name, 45.

Solicitor-General, 73.
Sovereign, power of, 49 ; see also

prerogative of Crown.
Squatter's right, 49.
Stamp Duty payable, 76, 77 ; on a

Royal Licence, 92 ; evasion of, 76,

77, 92.

Statutory authority for signatures of
peers and bishops, 12.

Stowe, 57.

Stuart, 13 ; period, 60.

Styles, 25.

Surnames, 13 ; origin of word, 14 ;
present absence of use of, 22 ; date
of origin of, 22, 23 ; use of right
can be required, 40 ; no right in,
40 ; legal aspect of, 39 et seq.; and
vide " Change " andwzofe "Names."

Sutherland, Duchess of, 12.

Sutton, 39.

TAMING OF THE SHREW, 59.
Tenchbray, 56.
Tenterden, C. J., 46, 47.
Terms of a Royal Licence, 91.
Territorial names, 17, 24, 25.
Thacher, 25.

118

INDEX.

The Macintosh, 33.

Thompson, 25.

Thynne, Francis, 6l, 63, 64.

Times, 9.

Title, change of, by Royal Licence, 8 1.

" Tre," 26.

Trim, 39.

Trusts, requirements of, 51, 52.

Trym, 39.

Tudor, 13, 30.

UDNY, 33.

Unauthorised arms, 83, 102, 103.

United States slaves, 60.

Ureill, 39.

Uselessness of Deeds Poll, 85.

Valentine v. Valentine, 42.

Validity of Acts, 51.

Variations of change possible, 81 et

seq.
Varieties of exemplifications, 96, 97 ;

of licences granted, 95, 96.

Veto on choice of baptismal names,

II.

Vincent, 59.

Voluntary changes, 76, 77 et seq.
Vyner, 25.

WAGSTAFFE, 25.

Wales, 26, 27.

War Office, 86.

Ward, Royal Licence to a, 94.

Washington, 65.

Welsh names, 26-31 ; origin of here-
ditary, 30 ; pedigrees, 29, 30, 44 ;
rhyme, 29.

Westminster tournament, 57.

White, 39 ; Alexander, 36.

Wilcox, 25.

William II., 56.

Williams, 25, 31 ; Richard, 57.

Wise, 25.

YARBOROUGH, COUNTESS OF, 12.

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